Netherlands 5 October 1994 District Court Amsterdam (Tuzzi Trend Tex Fashion v. Keijer-Somers)
[Cite as: http://cisgw3.law.pace.edu/cases/941005n1.html]
Primary source(s) for case presentation: Case abstract; case comment
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: H93.2900
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: Textiles
NETHERLANDS: Rb Amsterdam 5 October 1994
Abstract by Franco Ferrari
Facts. A German firm sold and delivered textiles to a Dutch firm in 1991. A few of the textiles were sent back by buyer. By writ dated 22 September 1991, seller claims payment. Buyer's position: Buyer states that everything has been paid: only a part had to be paid; it was paid on 26 September 1991. Buyer also alleges that that there was an overpayment that must be returned by seller as per a letter dated 10 September 1991. Besides this, seller has forfeited his rights because, after the letter of 10 September 1991, seller did not notify buyer in any way. Seller's position: Seller states as a defense that she did not accept the returned goods and was not required to according to the "Einheitsbedigungen der Bekleidungsindustrie", the applicable terms and conditions. Buyer remained obligated to pay for the returned goods. Buyer's contention that after 10 September 1991 he did not receive another response from seller is inaccurate. By letter dated 29 October 1991, seller demanded payment for the goods.
Considerations. At the time of the conclusion of the contract the CISG had entered into force in Germany but not in the Netherlands, where ULIS was still applicable. Neither the CISG nor ULIS applies directly. Applicable law. The applicable law must be determined pursuant to Article 4(2) of the EEC Convention. Seller is the party that provided the characteristic performance. Seller has his place of business in Germany. German law applies. Germany was a CISG Contracting State in 1991. The CISG applies according to its Article 1(1)(b). Forfeiture of rights. To judge buyer's claim of forfeiture of rights, the court must look to German law. Two conditions must be met: buyer must have been in good faith, and must have proceeded on this basis. The second element is not found by the court. Buyer's claim of forfeiture of rights is dismissed in accordance with German law. Effect of declaration of 29 October 1991. Under German law, a declaration of one party can only have effect when it reaches the other party. According to Article 24 CISG, a declaration reaches the other party when it has been delivered to his place of business or a postbox. The letter of 29 October 1991 has therefore reached buyer. Remaining issue. The court orders a personal appearance of the parties to provide information on the returning of the goods. The court will rule on this matter thereafter.
Go to Case Table of Contents
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:
4B [Scope of Convention (issues excluded): estoppel]; 7C23 [Gap-filling (problems governed by Convention but not expressly
settled): gap-filling by domestic law];
24B1 [Time when communication "reaches" addressee: delivery to
place of business or mailing
address]
EDITOR: Albert H. Kritzer
Contracts between a seller from Germany and a buyer from the
Netherlands were concluded at a
time when the CISG was in effect in
Germany but not in the Netherlands. German law was applied. This was
held
to be the CISG pursuant to
Article 1(1)(b).
Issues ruled upon:
Gap-filling/General principles of the CISG. The court held estoppel
(two-year delay by seller in invoking his rights and whether buyer acted in
reliance upon this) a matter to be resolved according to domestic law rather
than general principles of the CISG.
Communications, when a communication "reaches" the addressee.
Commenting on the effectiveness of a
communication that was mailed to an address previously provided by the
buyer but not received by the buyer
because the buyer had moved to another address; the court stated: "It
is indeed decisive that the statement is
received by the other party (according to German and Dutch law). But
following article 24 of the CISG . . . a
statement is received by a party if it is delivered to his place of
business or mailing address. Therefore the
[communication] has reached [the buyer]."
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=124&step=Abstract>
Italian: Diritto del Commercio Internazionale (1996) 631 no. 103
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Nederlands Internationaal
Privaatrecht (NIPR) 1995 No. 231 [195-196]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=124&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
English: Papandréou-Deterville, English translation of Dalloz case comment cited below [text presented below]; Ferrari, Nederlands Internationaal Privaatrecht (NIPR) 1995, 317 [327-328]
French: Papandréou-Deterville, Dalloz Sirey (1997)
223-224 Translation of comment published in Dalloz Sirey (1997) 223-224
Case comment by Marie-France Papandréou-Deterville
Translation by Annabel V. Teiling
[...]
The dispute in this case issued from a sales contract for fabrics concluded, in 1991, between
a Company established in Germany and a buyer established in the Netherlands. During the
delivery, the buyer sent back part of the goods, did not pay the part he did accept and, sent
a letter to the seller, explaining his behavior. Two years later, the seller summoned his co-contracting party for payment. The buyer claimed that he owed nothing to the seller and that,
in any case, the seller was deprived of his right to sue, since he had remained inactive for
almost two years. The Tribunal deemed that, in accordance with the Rome Convention of
1980, the applicable law to the contract is the law of the State with which the contract has
the closest connection; meaning the State of the party who is indebted from the breach, in this
case the seller; German law is therefore applicable and, indirectly the CISG. In accordance
with German law that governs the question of Verwirkung, which we can compare to estoppel
(see C. Witz, Droit privé allemand, Litec, 1992, no. 666), two conditions must be fulfilled
for the buyer to be able to resort to it: on the one hand, the behavior of the seller must have
led the buyer to believe that the right to claim payment would not be invoked again, and, on
the other hand, the buyer must have acted accordingly. The Tribunal felt that the second
requirement was not fulfilled. The seller had besides responded to the buyer's letter. In this
respect, it is unimportant that the latter never received the letter because of a change of
address. Indeed, according to article 24 of the CISG, a declaration of acceptance "reaches"
the addressee when it is delivered to his place of business or mailing address.
Thus, the Tribunal of Amsterdam invoked article 4 and held that we are dealing here with a
matter that was not governed by the Vienna Convention. We can legitimately ask ourselves
if the court should not have referred to article 7(2), which imposes that we must first look for
the existence of a general principle from which the Convention draws its inspiration. A strong
German doctrinal trend takes advantage of the principle of good faith, which innervates the
Convention to link back the institution of the Verwirkung to the Convention itself (see note
U. Magnus, op. cit., article 4, no. 53). Furthermore, American authors believe that the
Convention governs estoppel (J. Honnold, op. cit., no. 99 and 102, who invokes diverse
clauses of the Convention, such as article 16 (2)(b), 29 and 47). It seems thus, that it would
have been preferable to apply article 7(2) and to see within the Verwirkung a question
governed by the Convention, but not expressly settled by it.
[...]
Classification of issues present
Editorial remarks
Citations to case abstracts, texts, and commentaries
CITATIONS TO ABSTRACTS OF DECISION
Case comment
District Court (Arrondissementsrechtbank) Amsterdam 3 October 1994
Tuzzi Trend Tex Fashion v. WJM Keifer-Somers
Maître de conferences, Université de Strasbourg
Pace Law School Institute of International
Commercial Law - Last updated June 29, 2004