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| Abstract | ||||||||||||||||||
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| On November 2002, a Dutch seller and a Swiss buyer concluded six different contracts for the sale of six boats of the same model. Three of the contracts (namely, those regarding boats with hulls no. 1404, no. 1405 and no. 1406) provided for payment in five successive instalments and for transfer of ownership after fifty percent of the full purchase price had been paid. Shortly after the conclusion of the contracts the buyer assigned the rights arising from the contract concerning the boat with hull n. 1404 to a Czech company, which paid half of the price to the seller in three instalments. As a result, the buyer asked the seller to transfer the ownership of the boat to the assignee, but the transfer was accomplished only eight months later. Then a dispute arose between the parties.
At first instance the Court ruled in favour of the seller; the appellate Court confirmed the lower Court's decision. First of all, the Court interpreted the reference in both parties’ pleadings to Dutch law as a choice of law which led to the application of CISG, as part of the substantive Dutch law governing international sales (Art. 1(1)(b)CISG). As to the merits, the Court rejected the assignee’s argument that the first instalment paid to the seller related only to the contract concerning the boat with hull n. 1404. Indeed, although the seller had given its consent to assignment in advance, it was not proven that the seller had been timely informed that the rights arising from one of the contracts had actually been transferred to a third party (i.e. the Czech company). Consequently, there had been no valid modification of the contracts under Art. 29 CISG. Moreover, the correspondence exchanged between the parties and the amount paid in the first instalment (equal to three times the down payment on each single boat as provided by the contract) led the seller legitimately to believe that the advance payment was also for the boats with hulls no. 1405 and no. 1406. In addition, the Court held that the buyer was not entitled to suspend performance under Art. 71 CISG on the ground that the transfer of ownership was untimely, as it did not demonstrate having suffered any damage from the delay. Nor did the buyer have a right to suspend performance on the ground that the boat was unseaworthy by the end of June 2003, since the delay did not amount to a fundamental breach and the buyer had not proved that it had fixed an additional period of time for performance under Art. 47 CISG. Finally, the Appellate Court excluded that there was a difference between the boat produced by the seller and the prototype which amounted to fundamental breach by the seller. The expert appointed by the buyer to inspect the goods had only detected differences between the product manufactured by the seller and that described in the brochure handed out by the buyer. But the brochure was completely unknown to the seller, and no copy of it had become part of the contract. |