Netherlands 14 October 1999 District Court Rotterdam (Sheepskin case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/991014n1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: HA ZA 98-1405
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: France (plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: Sheepskin
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:
8A [Intent of party making statement or engaging in conduct];
23A [Contract concluded when acceptance becomes effective]
Descriptors:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=837&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Nederlands International Privaatrecht (2000) n. 29; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=837&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 179
Go to Case Table of ContentsCase text (English translation) [second draft]
Queen Mary Case Translation Programme
[...]
S.A. René Vidal & Cie (France) [seller], plaintiff in the principal action, defendant in the counterclaim, represented by Mr. D.J.R.M. Braakenburg, Procureur [*] and A.C.M.E. Hartsuiker-Hardebeck, Esq. Attorney-at-Law
vs.
Verotex Industries BV (Netherlands) [buyer], defendant in the first proceedings, plaintiff in the counterclaim, represented by Mr. E.R. Honée, Procureur.
[...]
7. THE JUDGMENT OF THE DISPUTE
In the principal action
7.1 The [seller] demands payment of the sheepskin which was sold and subsequently delivered to the [buyer] on 31 July 1997. The [buyer] refuses to pay on the grounds that the [seller] failed to fulfil its obligation to deliver sheepskin that could be dyed properly.
7.2 The [seller] refers primarily to the general terms and conditions of the agreement, stating that the [buyer] reacted too tardily. The [buyer] contests the applicability of these conditions. This point will have to be judged according to the Vienna Convention on the International Sale of Goods dated 11 April 1980 (Trb. [*] 1981, 184 and 1986, 61), which entered into force on 1 January 1992, hereinafter referred to as the Vienna Convention [CISG]. According to Article 1(1)(a) CISG, this Convention applies to contracts for the sale of goods between parties whose places of business are in different States, when the States are Contracting States. As the Netherlands and France are Contracting States to the CISG, it applies to the contract in casu. Art. 23 CISG provides that a contract is concluded at the moment when the acceptance of an offer becomes effective in accordance with the provisions of the CISG. The [seller] claims that its general terms and conditions are applicable, as reference is made to them at the bottom of the invoice and the text of the conditions is printed on the reverse of the invoice. The [seller] did not claim, however, that the [buyer] had accepted these conditions. According to the judgment of the court, the mere printing of the general terms and conditions on the reverse of the invoice, with a reference to them on the face of the invoice, is not sufficient. Thus, the applicability of the general terms and conditions of the [seller] has been rejected.
7.3. The [seller]’s claim that the [buyer] lost its rights under Art. 38 CISG et seq. to bring a claim on the grounds that the items were not in conformity with the contract, cannot be accepted either. According to the judgment of the court, the [seller] failed to establish this claim. Moreover, the [buyer] had informed the [seller] of its complaints within the reasonable period stipulated in Art 39 CISG. It is undisputed that the [buyer] had complained about the alleged defects in the leather to the [seller] immediately upon discovering their existence. It cannot be proven that the [buyer] could have discovered these defects at an earlier stage.
7.4 In light of the foregoing, it must be established whether the [seller] failed to comply with the terms of the contract agreed between the parties. This must also be judged according to the terms of the CISG.
7.5 Art 35 CISG states – insofar as is relevant here:
"(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they: [...]
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;"
7.6 The [seller] claims that the delivered leather was identical to a sample, which had been sent earlier, named under 2.4, which had been approved by the [buyer]. According to the [seller], the delivered leather had undergone the same tanning process and had the same color, thickness and originated from the same selection as the sample and thus, the court should find, was in conformity with the contract agreed by the two parties in the meaning of Art. 35(2)(c) CISG. The [buyer] confirms that in 1997 it received, approved and kept, a sample of "Fauve" leather. In stating now that the leather delivered at the end of July 1997 showed defects, the [seller] will have to prove that the leather delivered to the [buyer] around 31 July 1997, was of the same quality as the sample.
7.7 If the [seller] fails to provide this proof, it will have to be examined whether the delivered leather indeed cannot be used for the particular purpose, as meant in Art. 35(2)(b) CISG. In the case in question, the particular purpose was that the leather would be used to cover furniture and that the clientele of the [buyer] would dye the leather for this purpose. The [seller] has not disputed having knowledge of this particular purpose when the contract was concluded. The parties do not agree, however, as to whether the leather was suited for the particular purpose. In response to the claim of the [buyer] that the leather was not suitable, Catry, a company engaged by the [seller], found – in short – that the leather could indeed be dyed. Experts will have to establish this. The court encourages the parties to arrange, by common agreement, an independent expertise to be made in order to facilitate the legal proceedings.
7.8 While awaiting the outcome of the taking of evidence, the court defers all further judgments.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, plaintiff of France is referred to as [seller] and defendant of the Netherlands is referred to as [buyer].
Translator’s notes: Procureur = Legal agent who represents parties in civil matters in one District Court only; Trb. = Tractatenblad van het Koninkrijk der Nederlanden [Treaty Journal of the Kingdom of the Netherlands], official publication promulgating treaty texts.
** Associate, Institute of International Commercial Law, Pace University School of Law.
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