Data
- Date:
- 17-04-2015
- Country:
- Netherlands
- Number:
- 14/01711
- Court:
- Hoge Raad
- Parties:
- B.V. v. Primar S.a.r.l.
Keywords
PASSING OF RISK IN SALES INVOLVING TRANSPORTATION OF THE GOODS (ART. 69 CISG)
Abstract
[CLOUT CASE no. 2144. Abstract prepared by Jan Smits, National Correspondent, and Steven Debie[
At the heart of this dispute lies Article 69 CISG, which delineates the passing of risk associated with goods from a seller to a buyer. The judicial challenge in this case was to pinpoint the moment when the risk of potential defects or damages transitioned from the Seller to the Buyer. In this case, the Buyer questioned the quality of the tomatoes acquired from the Seller, as they were deficient upon delivery by the Buyer to the final destination in Moscow. The Buyer posited that there existed a fundamental defect, which detrimentally impacted the tomatoes’ quality. This argument suggested that the flaw was present at the point of delivery at the Buyer’s specified address, alluding to a root issue potentially tied to disease or pathogens.
In its deliberation, the Court of Appeal proceeded with the assumption that the tomatoes were in pristine condition upon their arrival at the Buyer’s address. However, the court recognized the potential for the tomatoes to manifest defects at a later stage. Such defects could arise from disease, the natural aging process, or inconsistent adherence to requisite cooling protocols, particularly during transportation. The salient question was whether the deficiency in the tomatoes was a consequence of an infection contracted prior to transportation, as postulated by experts, or if it originated from another source.
The Court of Appeal, in accordance with Article 69 CISG, determined that the risk associated with the tomatoes shifted from the Seller to the Buyer upon their delivery to the Buyer’s address. The ensuing transportation from the Buyer’s address to Moscow, both arranged and financed by the Buyer, thus placed the associated risk on the Buyer. In the absence of definitive evidence from both the court and experts concerning the tomatoes’ consistent cooling and transportation under standardized temperature conditions, the court could not rule out the possibility of damage during the tomatoes’ transit from the Buyer’s address to Moscow. This assessment led the court to depart from the expert conclusions, which refuted the potential for damage during transit. The court therefore ruled that the Buyer was responsible for the damages because they failed to provide compelling evidence that the tomatoes were consistently cooled and maintained at standard temperatures during transit to Moscow.
Upon appeal, the Supreme Court presented a contrasting viewpoint. The Supreme Court emphasized the necessity for clarity in the passing of risk and highlighted ambiguities about the transportation phase. While the Supreme Court agreed with the Court of Appeal’s determination that the risk associated with the tomatoes shifted to the Buyer upon delivery at the Buyer’s address, it took exception in its subsequent evaluation. The Court of Appeal considered the transportation conditions between the Buyer’s address and Moscow as crucial in determining liability. However, the Supreme Court challenged this assessment, given the Buyer’s detailed contention that the tomatoes were already defective upon delivery at the Buyer’s address. If this assertion was upheld, the Seller would be liable for the damages, as stipulated by Article 69 CISG, which holds the seller accountable if goods do not align with the agreement when the risk transitions to the buyer. In this context, the conditions of the transit from the Buyer’s address to Moscow become irrelevant. The Buyer’s assertion regarding the defectiveness of the tomatoes upon delivery is therefore of paramount importance, and its neglect by the Court of Appeal was a notable oversight. Consequently, the Supreme Court overturned the ruling from the Court of Appeal and referred the case to another Court of Appeal for further scrutiny.
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Source
CASE LAW ON UNCITRAL TEXTS (CLOUT), A/CN.9/SER.C/ABSTRACTS/233
Original in Dutch:
- available at www.rechtspraak.nl}}