A Dutch seller and a Belgian buyer concluded a contract for the delivery of tomato plants. The buyer received and signed an order form referring on the front side to the application of the seller’s standard terms which were printed on the back. Among other clauses, the standard terms contained a limitation of the seller’s liability in case of non-conformity of the plants, according to which the seller would be liable only if it had been grossly negligent in ignoring the lack of conformity, and anyway only up to a sum corresponding to the price. After receipt of the order form, the seller confirmed the order, again referring to the application of its standard terms printed on the back. The contract was concluded on the basis of the buyer’s order and the confirmation of the order by the seller. The plants were delivered and the price paid. An expert examination conducted the following year on the grown tomato plants in Belgium ascertained that a part of them was affected by a disease which infected other plants. The buyer asked the seller for damages and the seller brought an action to obtain a judicial declaration against such a claim.
The first instance courts denied any liability of the seller and the buyer appealed.
The Supreme Court confirmed the first instance rulings that the contract was governed by CISG and that the inclusion of the standard terms in the contract was a matter governed but not expressly settled by the Convention (Arts. 4 and 8 CISG), to be settled first of all by recourse to the general principles underlying the Convention (Art. 7 (2) CISG). The Court held that the seller’s standard terms, including the exoneration clause, had become part of the contract, thereby implicitly applying the general rules on formation of contract and interpretation of parties’ statements under CISG and therefore denying recourse to the relevant conflict of law rules (1980 Rome Convention). As a result the Court confirmed that under the circumstances of the case there was no evidence of gross negligence on the part of the seller and therefore rejected the buyer’s claim for damages for lack of conformity of the plants.
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