Netherlands 25 February 2009 District Court Rotterdam (Fresh-Life International B.V. v. Cobana Fruchtring GmbH & Co., KG) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/090225n1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: LJN BH6416; 279354 / HA ZA 07-576
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Netherlands
BUYER'S COUNTRY: Germany
GOODS INVOLVED: Fruits and vegetables
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
7A33 ; 7B1 [Applications of good faith standards: application to communication of general terms and conditions; Materials for interpretation of Convention: international case law and scholarly studies]; 8C [Interpretation of party's statements or other conduct: interpretation in light of surrounding circumstances]; 9C [Usages and practices: practices established by the parties]
7A33 ; 7B1 [Applications of good faith standards: application to communication of general terms and conditions; Materials for interpretation of Convention: international case law and scholarly studies];
8C [Interpretation of party's statements or other conduct: interpretation in light of surrounding circumstances];
9C [Usages and practices: practices established by the parties]
Reproduced with permission of European Journal of Contract Law (2/2009) 105
EDITOR: Sonja Kruisinga, Utrecht University
Rechtbank Rotterdam (Fresh-Life v. Cobana) 25 February 2009
FACTS OF THE CASE
This case concerned a contract for the international sale of goods. The seller … argued that the CISG was not applicable because the application of this Convention had been excluded in the general conditions of the seller. The buyer, however, contested the application of these conditions.
The court considered that, having regard to the general principle of good faith in international trade as provided for in Article 7(1) CISG, it is not sufficient for the application of general conditions to refer to such conditions in the offer without making the text of the conditions available before or at the time of the conclusion of the contract. It cannot reasonably be expected that the offeree should enquire about the content of such conditions. Such an obligation for the offeree would lead to a delay in the conclusion of the contract, whereas for the party making use of general conditions, generally the party that is favoured by such conditions, as a rule, it involves only a very minor effort to make the text of the general conditions available to the other party. With respect to this issue, the court referred to the decision by the German Supreme Court (Bundesgerichtshof 31 October 2001). The court held that a reference to the general conditions in the invoices in Dutch does not suffice to ensure the application of such general conditions. Therefore, the general conditions of the seller did not apply to the contract at hand.
[T]he Dutch court referred to German case law and followed the line that was established therein. It follows from this -- and from other case law -- that, in general, a mere reference to general conditions does not suffice in order to ensure that these general conditions will become part of a contract that is governed by the CISG.Go to Case Table of Contents
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Netherlands case law website <http://www.rechtspraak.nl/>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
25 February 2009 [279354 HAZA 07-576]
Translation [*] by Anne Hemmink [**]
This is a dispute between [Receiver] acting in the capacity as receiver in bankruptcy for the Plaintiff, private limited liability company Fresh-Life International B.V. [Seller], established in [The Netherlands] vs. Defendant, Cobana Fruchtring GmbH & Co. KG [Buyer], established in Hamburg, Germany.
1. THE PROCEEDINGS
1.1 Development of the proceedings:
|-||Interlocutory judgement of 25 July 2007;|
|-||Record of the appearance before the court of 13 September 2007;|
|-||Instrument of deposit by the Receiver;|
|-||Pleading regarding the reply by the Receiver;|
|-||Pleading regarding the rejoinder by the [Buyer].|
1.2 Finally, judgment is determined.
2. THE FACTS
2.1 [Seller] was engaged in (international) trade in vegetables and fruit. On 28 May 2002, [Seller] registered its general terms and conditions at the Chamber of Commerce at Rotterdam. Among other provisions, these general terms and conditions included the following:
Article 1: Scope of Application
1. The following general terms and conditions apply to all agreements between [Seller] and any third party, hereinafter referred to as "Buyer", unless it has been explicitly stated otherwise.
Article 11: Payment
1. Payment of the delivered goods must be made within two weeks after the date of the invoice regarding the goods (…)
3. Compensation with any other claim which the buyer has or presumes to have, is not allowed, unless [Seller] has sent a credit invoice to the buyer or has been ordered by the court to pay a sum of money to the buyer.
4. The buyer will owe interest at the rate of 1 % per month if the period as referred to in article 11.1 is exceeded (…)
Article 23: Applicable Law
1. Only Dutch law will apply to all agreements, purchasing agreements and other agreements, concluded with [Seller].
2. The Dutch text is indicative. With regard to transactions with foreign companies, the applicability of the so-called ULF and ULIS and the CISG is explicitly excluded.
2.2 Since 2004, [Seller] and [Buyer] have engaged in business with each other on a regular basis. In the period of 14 September 2005 till 30 November 2005, [Seller] supplied and invoiced products to [Buyer] for sum total € 54,055.47 including VAT.
2.3 The invoices that were sent to [Buyer] by [Seller] had a green print, vertically placed on the right side of the invoices, containing the following text: "To all our sales contracts the terms of sale and delivery apply, which are deposited at the Dutch Chamber of Commerce Rotterdam d.d. 5 April 2002. On demand, we will send a copy. We are obliged to report overdue entries to Atradius N.V."
3. THE DISPUTE
3.1 The Receiver claims, after decreasing the claim on appearance before the court, that, by a decision which is immediately enforceable, the district court should order the [Buyer] to pay an amount of € 52,139.47 to be increased with an amount of € 1,788.00 due to costs made to collect the money owed and to be increased with the contractual interest till 31 December 2006 at € 9,491.89 and with the contractual interest of 1% per month, at least the interest rate which applies to business transactions on the basis of the law, over the sum total of € 52,139.47 from 1 January 2007. At least the dates as early as possible, till the day of the total payment, with [Buyer] obligated to pay the costs of the proceedings, including the costs afterwards.
3.2 The Receiver alleges that: [Seller] has delivered the products in the period from 14 September 2005 until 30 November 2005, as agreed between [Buyer] and [Seller], for which [Buyer] had to pay the amount of € 52,139.47 to [Seller]. Wrongfully, [Buyer] did not make the payment, in spite of reminders and requests. The set-off, to which [Buyer] refers, conflicts with the general terms and conditions which are applicable to the agreement. In the past, parties have also not settled, so that out of the actual usage between the parties it also appeared that set-off was not justified. Given the dates of invoice and the maturity dates, [Buyer] owes over the total an interest of € 9,491.89 for the period up to 31 December 2006. The interest rate, that is also owed over the period afterwards, is agreed at 1 % per month. To receive the payment outside of the court, the Receiver had to incur further costs, which [Buyer] ought to reimburse up to an amount of € 1,788.00.
3.3 [Buyer]'s counterarguments are based on the inadmissibility of the claim made by the Receiver, at least refusal of the claim. In particular, [Buyer] alleges that there is a matter of a set-off of a claim against the Receiver / [Seller] with a claim from the [Buyer] against the [Seller]: [Buyer] has a claim against the [Seller] for € 61,526.18. Both claims existed before the bankruptcy of [Seller].
The general terms and conditions of [Seller] have not been accepted and, apart from that, they are not applicable, as the provisions of the Vienna Convention are applicable. The terms and conditions were never made available to [Buyer]. In view of the jurisprudence, such terms and conditions are not applicable if no reasonable measures were taken to bring them to the attention of the other party. As this has not happened in this case, the [Seller]'s terms and conditions are not applicable.
4. THE JUDGMENT
4.1 In principle, the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention, hereinafter: CISG) is applicable to the agreement between [Buyer] and [Seller], as it concerns a purchase agreement of movable property, made between parties established in different Contracting States and it concerns an agreement which was concluded at a time when these States were members of the treaty.
4.2 However, the Receiver alleges that, on the basis of the provisions of the [Seller]'s general terms and conditions of, the application of the CISG is excluded. [Buyer] disputes the applicability of these terms and conditions, so that it needs to be judged whether the general terms and conditions are applicable to the agreement of the parties.
The Receiver, who states that the [Seller]'s general terms and conditions are applicable to the agreement, bases his point of view on the business relation of many years of the parties, during which the applicability of the terms and conditions was constantly mentioned on the invoices. That the (complete) text of these terms and conditions were sent or presented at any moment is not stated by the Receiver, and is disputed by [Buyer]. It is, however, certain that the reference on the invoices has been made according to the method mentioned above under 2.3.
4.3 Contrary to an argument of the parties, the answer to the question whether the reference on the invoices, in the Dutch language, (in a longstanding relationship) is sufficient to lead to the applicability of the general terms and conditions, is not to be found with reference to the judgement of the Supreme Court of the Netherlands of 2 February 2001, NJ 2001/200. That is a case in which the CISG was not applicable: Netherlands first became a member of the CISG on 1 January 1992, while according to that judgement, the agreement of those parties was concluded in 1990.
4.4 In view of the principle of good faith expressed in international trade, mentioned in article 7(1) CISG, it is not sufficient for the applicability of general terms and conditions to refer to the general terms and conditions in the offer to conclude a contract, without providing the text of the general terms and conditions preceding or during the closing of the agreement.
The party to whom the offer is made cannot be required to inquire after the content of the general terms and conditions. Such obligation would lead for the opposite party to undesirable delay in making an agreement while, for the user of the general terms and conditions, who by the use of the general terms and conditions mostly benefits, it ordinarily is not much effort to send the text of the general terms and conditions to the other party. The ruling of the Federal Supreme Court of Germany [BGH] 31 October 2001, NJW 2002, 1651 can also be regarded in this context. Only the mentioning in Dutch on the invoices is considered unsatisfactory to lead to applicability of the mentioned terms and conditions.
4.5 This leads to the conclusion that the general terms and conditions of [Seller] do not apply to the contract between the parties. The amount of the claim of [Seller] / the Receiver against the [Buyer] is not disputed. The amount of the [Buyer]'s counterclaim is also not disputed. The statement of the Receiver that the set-off requested by [Buyer] is in conflict with the general terms and conditions of [Seller] cannot persist, in view of what is held concerning the applicability of these general terms and conditions.
4.6 The Receiver pleads furthermore that [Seller] should trust that [Buyer] would not proceed to settlement, since the parties have never settled and also given the fact that [Buyer] did not allow a set-off in its own general terms and conditions. This statement is rejected. Even given the undisputed established fact that [Buyer] and [Seller] had never proceeded to settlement with one another in the past, it cannot be deduced that the competence of [Buyer] to settle would not exist (anymore). The relinquishment of rights cannot be deduced from the fact that the empowered person sits still. There were no additional facts or circumstances which would lead to the conclusion that [Seller] / the Receiver could reasonably trust that [Buyer] would not proceed to a settlement, also if [Buyer] would be in state of bankruptcy. And the existence of a ban on settlement in the [Buyer]'s general terms and conditions is irrelevant; these conditions also do not apply to the agreement.
4.7 From the above, it follows that [Buyer] pleads correctly to the settlement, also in consideration of article 53 of the Netherlands Bankruptcy Act, and that the claim by the Receiver must be rejected.
4.8 The Receiver will be ordered to pay the costs of these proceedings as it is the party that has lost the case. The costs on the side of [Buyer] are estimated at:
|-||Legal charges € 1,435.00|
|-||Salary attorney 2,682.00 (3 points × tariff € 894.00)|
|Total: € 4117.00|
5.1 Rejects the Receiver's claim;
5.2 Orders the Receiver to compensate any legal costs on the side of [Buyer], estimated until now at € 4,117.00;
5.3 Declares this judgment concerning the order of the costs immediately enforceable.
This judgment is pronounced by Mr. M. Engelbert-Clarenbeek. Signed and publically pronounced on 25 February 2009 by Mr. C. Bouwman.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Netherlands is referred to as [Seller] and the Defendant of Germany is referred to as [Buyer].
** Anne Hemmink is finishing her Masters in Private Law at the University of Utrecht and is specializing in International Commercial Law and Corporate Law.Go to Case Table of Contents