Data
- Date:
- 20-01-2016
- Country:
- Netherlands
- Number:
- C/16/333272 / HA ZA 12-1274
- Court:
- Rechtbank Midden-Nederland (District Court)
- Parties:
- WORLD WIDE QUALITY IN MEAT B.V.
Keywords
INCORPORATION OF STANDARD TERMS - THE OTHER PARTY MUST HAVE A REASONABLE OPPORTUNITY TO TAKE NOTICE OF THEM - REFERENCE TO OPINION NO. 13 CISG-AC
BUYER’S OBLIGATION TO EXAMINE THE GOODS AS SOON AS PRACTICABLE UNDER THE CIRCUMSTANCES (ART. 38 CISG)
BUYER'S FAILURE TO GIVE TIMELY NOTICE OF NON-CONFORMITY (ART. 39 CISG)
Abstract
[CLOUT CASE no. 2142. Abstract prepared by Jan Smits, National Correspondent, and Steven Debie]
The dispute revolves around the delivery of frozen meat from the Seller to the Buyer. The core of the dispute concerns the quality of the delivered meat, with the Buyer asserting the presence of bone fragments, deeming it not in conformity with the agreed specifications and hence asserting a fundamental breach of contract. Also, the court had to establish the applicability of the CISG and the Seller’s terms and conditions. Despite the choice of Dutch law, the CISG was not explicitly excluded by the parties, and given its inherent application in the international sales of goods under Dutch law the CISG applies according to article 1(1) (a) CISG as both parties were from contracting states of the CISG (the Kingdom of the Netherlands and France). Worth mentioning was that the court ruled that there was a valid forum selection clause, as they are typically enforced in the trade sector by reference on invoices, without necessitating the actual provision of the general terms.
The court had to determine the applicability of the Seller’s general terms and conditions. For this it referred to the CISG’s principles, emphasizing the need for uniform interpretation and good faith in international trade. The court aligned with the CISG Advisory Council Opinion No 13, outlining “Black Letter Rules” which suggest that general terms are part of the contract if agreed upon (expressly or impliedly) and reasonably known to the counterparty. In this instance the court found that the Seller did not establish the provision of these general terms to the Buyer in any recognized manner, such as an attachment to contract-related documents or prior agreements. The Seller’s reference to terms deposited with the Chamber of Commerce was deemed insufficient for constituting a reasonable opportunity for the Buyer to become acquainted with them.
Concerning the timely complaint about the meat’s quality, Article 38 CISG obliged the Buyer to promptly inspect the goods and notify the Seller of any defects within a reasonable time, as stipulated in Article 39 CISG. The court stated that the presence of bone fragments should have been discovered during a proper inspection immediately after delivery. Therefore, the complaint period commenced right after receiving the meat. Considering the perishable nature of the goods, a short complaint period is typical, and the Buyers’ delay of over a month to file the complaint exceeded a reasonable time frame, thus waiving their right to claim non-conformity.
The court asserted that even if non-conformity were proven, the Buyer lost the right to invoke it due to the exceeded complaint term. Consequently, the court ruled in favour of the Seller for the payment of invoices, noting that even the application of Dutch Civil Code articles 7:23 and 6:89 would not alter the outcome due to the Buyer’s failure to meet inspection and complaint obligations.
Regarding compensation for statutory interest and extrajudicial costs claimed by the Seller, Articles 74 and 78 CISG state that extrajudicial costs may be eligible for compensation and respectively that if a party fails to pay the price, the other party is entitled to interest. However, the Vienna Sales Convention does not specify the composition of the amount to be compensated, respectively the term and rate of the interest. Therefore, Dutch law applies for this determination. The court, applying Dutch law, awarded statutory interest and rejected the claim for extrajudicial costs.
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