Netherlands 24 April 1996 Appellate Court 's-Hertogenbosch (Peters v. Kulmbacher Spinnerei Produktions)
[Cite as: http://cisgw3.law.pace.edu/cases/960424n1.html]
Primary source(s) for case presentation: Michael R. Will
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 456/95/He
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: Yarn
NETHERLANDS: Hof '-Hertogenbosch 24 April 1996
Abstract by Franco Ferrari
Facts. Seller has sold and delivered yarn to buyer. Buyer has not paid the purchase price, a total of DM 45,457.39. Seller now claims payment of the amount and interest on several grounds: first, 4% interest (rate Deutsche Bundesbank) from 1 October 1993 until the day the amount is paid; second, the amount and the interest that is meant in Article 78 CISG from 22 August 1993 until the amount is paid. Buyer contests the applicability of seller's general terms and conditions. Buyer also alleges that the first order was delivered too late and claims damages. The Rb sustained seller's claim, regarding seller's general terms and conditions applicable because seller and buyer had already done business in 1992 and buyer could have known the terms.
Considerations. Seller and buyer concluded their sales contract on 15 April 1993. Seller provides the characteristic performance and has his place of business in Germany. Therefore, German law applies. The CISG is a part of German law and applies as well. The place where the contract was concluded is not easily determined. However, this has no further consequences. Buyer is an international entrepreneur, so he should be aware of the fact that general terms and conditions are a common feature in international practice. With regard to the decision of the Rb, the general conditions are a part of the sales contract. The first interest claim must be diminished, as the rate was lowered to 3.5% in July 1993. The contractual interest rate is diminished to 7.5%, which cannot be regarded as an unreasonable clause. None of the general terms and conditions can be regarded as unreasonably burensome.
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APPLICATION OF CISG: Yes, Court also concluded no difference in results whether CISG, German domestic Law or Dutch domestic law applied
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles
Classification of issues using UNCITRAL classification code
numbers:
78B [Interest on delay in receiving price: rate of interest (contract rate
applied)]
Descriptors:
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=224&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Nederlands Internationaal
Privaatrecht (1996) No. 235 [323-325]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=224&step=FullText>
Translation: Unavailable CITATIONS TO COMMENTS ON DECISION
English: Honnold, Uniform Law for International Sales (1999) 129 [Art. 9 (standards for usage)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 2-13 n.203; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 9 paras. 8, 18, 19; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 85Classification of issues present
Editorial remarks
Citations to case abstracts, texts, and commentaries
CITATIONS TO ABSTRACTS OF DECISION
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Commercial Law - Last updated December 5, 2005