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Netherlands 28 January 2005 Supreme Court (B.V.B.A. Vergo Kwekerijen v. Defendant)
[Cite as: http://cisgw3.law.pace.edu/cases/050128n1.html]

Primary source(s) of information for case presentation: UNCITRAL abstract

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Case identification

DATE OF DECISION: 20050128 (28 January 2005)


TRIBUNAL: HR [ = Hoge Raad = ]

JUDGE(S): J.B. Fleers, H.A.M. Aaftink, D.H. Beukjenhorst, O. de Savornin Lohmen, A.M.J. van Buchem-Spapens


CASE NAME: B.V.B.A. Vergo Kwekerijen v. Defendant

CASE HISTORY: 1st instance Rb Rotterdam 26 April 2001; 2d instance Hof 's-Gravenhage 24 June 2003 [affirmed]

SELLER'S COUNTRY: The Netherlands (defendant)

BUYER'S COUNTRY: Belgium (plaintiff)

GOODS INVOLVED: Tomato plants

Case abstract

NETHERLANDS: Hoge Raad [Supreme Court] 28 January 2005

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/81],
CLOUT abstract no. 831

Reproduced with permission of UNCITRAL

Abstract prepared by Jan Smits, National Correspondent, and Bas Megens

A Dutch company sold tomato plants to a Belgian company, which -- as was later confirmed by a Belgian expert -- were infected with "Coryna bacterial withering disease". The buyer claimed compensation for damages suffered due to fact that the entire crop failed as a result of using the infected plants. Upon delivery of the plants the buyer had signed a receipt, which indicated that the General Terms and Conditions of the Dutch Plant-Breeders Society, as printed on the back of the receipt, were applicable to the transaction. These Terms and Conditions indicated that liability for substandard plants by the seller could not exceed the purchase price. The seller argued that the buyer was bound by this clause. The buyer argued that its consent as to applicability of these Terms and Conditions did not include a consent to this exoneration clause.

The Supreme Court determined that the Court of Appeal was correct in determining that the CISG applies to the case. The Court then determined that, under article 7(2) CISG, questions which fall within the ambit of the Convention but which are not expressly provided for in the Convention, must be settled by reference to the general principles on which the Convention is founded or, in the absence of such principles, by reference to the law which is applicable according to the rules of private international law. The question whether a party has consented to the coming into existence of an agreement and to the applicability of related general terms and conditions falls within the ambit of the Convention. On the law, the Supreme Court thus decided that the question whether the buyer consented to the application of the seller's General Terms and Conditions, including the disputed exoneration clause, must therefore be settled by reference to the rules of the Convention, pursuant to article 7(2) of CISG and not by reference to any system of law that would be applicable under rules of private international law.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]


Key CISG provisions at issue: Articles 4 ; 7(2) ; 8

Classification of issues using UNCITRAL classification code numbers:

4A [Scope of Convention (issues covered): inclusion of standard terms and conditions];

7C22 [Problems governed by Convention but not expressly settled: recourse to general principles on which Convention is based];

8B [Intent (interpretation of party's statements or other conduct): interpretation based on objective standards]

Descriptors: Scope of Convention ; Standard terms and conditions ; Exculpatory clauses ; General conditions ; Intent

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Editorial remarks

Excerpt from presentation by Philip De Ly, "Sources of International Sales Law: An Eclectic Model", at UNCITRAL - SIAC Conference on 25 Years United Nations Convention on Contracts for the International Sale of Goods, Singapore (22 September 2005)

"The facts of this case related to a sale of Tomato plants by a Dutch seller to a Belgian buyer. The plants were imported by the Dutch company from a seller in Gran Canaria and expert evidence had shown that the plants were infected by a bacteria. There were no express warranties obtained from the seller in Gran Canaria and the Dutch seller relied on its general conditions of sale containing an exemption clause. The trial courts had decided that, under CISG, there was agreement between the parties as to the application of the seller's general conditions and that the Dutch seller was exempted from liability. The Belgian buyer attempted to avoid the application of the CISG by invoking Article 8(2) of the Rome Convention on the Law Applicable to Contractual Obligations protecting a party against acceptance by silence if any such protection is afforded by the law of its place of habitual residence. The Dutch Supreme Court held that the Rome Convention was not applicable because the matter regarding the formation of the sales contract was governed by CISG. The gap as to the application of standard conditions, in the opinion of the Court, was to be decided by CISG's rules on contract formation and, thus, the acceptance of the seller's general conditions was governed solely by CISG, pre-empting conflict rules. The Gran Canaria Tomatoes case shows that Article 7(2) CISG not only may pre-empt domestic rules regarding general conditions but also protective conflict rules."

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Citations to other abstracts, case texts and commentaries


English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1012&step=Abstract>


Original language (Dutch): Hoge Raad website; [2005] Rvd W (Rechtsraak van de Week) 22; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1012&step=FullText>

Translation: Unavailable


French: Claude Witz, Recueil Dalloz (22 February 2007) 537

German: Martin Schmidt-Kessel, Kollisionsrechtliche Behandlinug der Einbeziehuing Allgemeiner Geschäftsbedingungen unter dem CISG, ZEuP (2008) 605-617

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Pace Law School Institute of International Commercial Law - Last updated January 16, 2009
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