Netherlands 19 December 1991 District Court Roermond (Fallini Stefano v. Foodik)
[Cite as: http://cisgw3.law.pace.edu/cases/911219n1.html]
Primary source(s) for case presentation: F. De Ly; Michael R. Will; UNCITRAL abstract; Unilex abstract
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 900336
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Cheese
Case law on UNCITRAL texts (CLOUT) abstract no. 98
Reproduced with permission from UNCITRAL
The plaintiff, an Italian seller, sued demanding payment of the price of cheese sold and delivered to the defendant, a Dutch buyer. The [buyer] counterclaimed damages and reduction of the price on the ground of non-conformity of the goods with contract specifications.
Applying Dutch private international law, the court found that CISG was applicable as the law of Italy, i.e. the country where the seller had its place of business at the time of the conclusion of the contract (art. 1(1)(b) CISG). The court held that the reasonableness o[f] the time of giving notice depended on the nature of the goods involved. In this case, the court found that the buyer had notified the seller of the non-conformity of the cheese shortly after delivery, which in the view of the court was a reasonable time in view of the fact that cheese is a perishable item (articles 38 and 39 CISG).
The court further found: that the buyer did not notify the seller about the nature of the defect, i.e. that the cheese was infested; and that the fact that the cheese was frozen and not described in the contract was not sufficient reason for not examining it. It was held that, in order for the seller not to be able to rely on articles 38 and 39 CISG, the buyer had to prove its allegation that the seller knew or could not have been unaware that the cheese was infested already at the time it was frozen (art. 40 CISG). The court observed that, if the buyer were able to meet that burden of proof, it would be entitled to a reduction of the purchase price pursuant to article 50 CISG.
APPLICATION OF CISG: Yes [Article 1(1)(b)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles
Classification of issues using UNCITRAL classification code
numbers:
39A1 ; 39A2 ; 39A3 [Requirement to notify seller of lack of conformity:
within reasonable time; Specification of nature of non-conformity; Exception
in case of seller's knowledge];
40A [Seller's knowledge of non-conformity (seller fails to disclose known
non-conformity): burden of proof]
Descriptors:
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=34&step=Abstract>
French: Revue de Droit des Affaires Internationales (1995) 1013-1014 [CLOUT abstract]
Italian: Diritto del Commercio Internazionale (1994) 851 No. 32
Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 247
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Nederlands Internationaal Privaatrecht (NIPR) 1994, No. 394 [665-667]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=34&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
English: Ferrari, International Legal Forum (4/1998) 138-255 [238 n.909 n.911 (notice of lack of conformity)]; Honnold, Uniform Law for International Sales (1999) 274 [Art. 38 (timeliness of examination)]; Lookofsky, Understanding the CISG in Scandinavia (1996) 62 n.91; Bernstein/Lookofsky, CISG/Europe (1997) 62 n.63, 66; for a survey of close to 100 judicial and arbitral rulings on Article 39(1), go to the 1998 Pace essay on this subject by Camilla Baasch Andersen; Kuoppala, Examination of the Goods under the CISG and the Finnish Sale of Goods Act (2000) §§ 4.4.1.4, 4.8 [analysis of related articles 38, 39, 40 and 44 (includes digests of relevant material in many CISG cases; also digests cases under a domestic sales code that is patterned, for the most part, after the CISG)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 4-9 n.118, n.134; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.345, 370, 399, 585; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (cases cited in addendum to opinion); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 67, 79, 185; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 38 para. 14 Art. 40 para. 12 Dutch: van der Velden, Weekblad voor privaatrecht, notariaat en
registratie (WPNR) 1994, 564 [565-566]
French: Witz, Les premières applications jurisprudentielles du
droit uniforme de la vente internationale
(L.G.D.J., Paris: 1995) 92-93 n.62, 107 n.119
German: Schlechtriem, Internationales UN-Kaufrecht (1996) 88 n.68
Greek: Witz/Kapnopoulou, Ellenike epitheorese europaikou dicaiou (1995) 561 [575 n.49]
Classification of issues present
Editorial remarks
Citations to other abstracts, case texts and commentaries
CITATIONS TO OTHER ABSTRACTS OF DECISION
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Commercial Law - Last updated August 15, 2005