- C/01/322578 / HA ZA 17-428
- Rechtbank Oost-Brabant
- Genson B.V. v. S&A Produce Ltd.
APPLICATION OF CONVENTION - BASED ON PARTIES' CHOICE (ART. 1(1)(B))
INCORPORATION OF STANDARD TERMS - THE OTHER PARTY MUST HAVE A REASONABLE OPPORTUNITY TO TAKE NOTICE OF THEM - REFERENCE TO OPINION NO. 13 CISG-AC
CONFORMITY OF GOODS - NOTICE OF LACK OF CONFORMITY - PRECISE SPECIFICATION OF LACK OF CONFORMITY (ART. 39(1) CISG)
A Dutch company (seller) and an English company specialized in the cultivation of fruits (buyer) signed a contract for the sale of 500.000 strawberry plants. After the goods had been delivered, the buyer refused to pay the outstanding price alleging that the goods had suffered water mold (a very contagious plant disease), and therefore couldn’t grow as they were expected to. The seller challenged that the defectiveness of the plants was imputable to it.
As the parties had agreed on the application of the Convention, the Court confirmed that CISG was the governing law pursuant to its Art. 1(1)(b).
With respect to the seller’s argument that its standard terms had been incorporated into the contract, the Court found that the buyer had had a reasonable opportunity to take notice of them. Even though such terms were written in Dutch, the fact that the company director was Dutch had made possible for it to read and understand such terms before signing the confirmation order to which they had been attached. In reaching such a conclusion, the Court referred to the CISG-AC Opinion no. 13 (Inclusion of Standard Terms under the CISG).
The Court then addressed the issue as to whether the buyer had fulfilled its obligation of notifying lack of conformity according to Art. 39 CISG. After pointing that Art. 39 CISG requires notice being specific as to the nature of the alleged defects, the Court denied that the buyer’s notification satisfied such a requirement. In fact, whereas during the legal proceedings the buyer indicated water mold as the cause for non-conformity, it was written in the notification sent to the seller that the plants had been damaged by reason of cold storage. Nor had the buyer informed the seller of the water mold within a reasonable time from it had discovered it. As a result, the Court found that the buyer had not acted in compliance with Art. 39 CISG.
Original in Dutch:
- available at the University of Basel website, http://www.cisg-online.ch/}}