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| Abstract | ||||||||||||||||||
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| A German Buyer ordered orally from a Dutch Seller strawberry plants. However, after a first purchase of a certain quantity of plants, the second purchase of the was changed to a bigger number of plants. The final price was kept the same because of the superior quality of the replacing plants. The Seller issued two invoices including a 6% Dutch sales tax. The Buyer made two partial payments, refusing to pay the tax. The Seller brought an action against the Buyer to obtain the remainder of the price, together with pre-procedural costs, such as collection and attorneys' fees.
The First Istance Court dismissed for the most part the seller´s claim. The seller appealed. The Appellate Court held that, since both contractual parties have their place of business in different Contracting States (Art. 1(1)(a)), the contract was governed by CISG, the applicability of which had not been excluded by the parties. As to merits, in the opinion of the Court the interpretation of the parties´contractual statements, which had to be carried out according to CISG’s provisions (Art. 8 CISG), led to the conclusion that the Buyer was obliged to pay the Dutch sales tax (Art. 62 CISG). Indeed, the Buyer never contested either the invoice issued nor the further writing of the Seller, which expressly referred to the fact that the Buyer had to pay the sales tax. Therefore it could be assumed that the parties wanted to adhere to the existing Dutch tax law. However, only part of the amount claimed by the Seller was considered as unconditional; for the rest, the maturity of Seller’s claim depended on the issuing of a correct modified invoice on Seller’s part in accordance with the contractual agreement (Art. 58 CISG). As to the collection costs, the Court held that, even if CISG does provide a basis for a claim (Art. 74), the Seller did not adequately proved how these costs were to be calculated, nor if and when they accrued. As to the pre-procedural attorneys’fees, the Court held that their recovery fell outside the scope of Art. 74 CISG, because at the time the Seller made recourse to the lawyer it could no longer count on further payments by the Buyer without judicial help, since the Buyer had already settled the price for the deliveries except for the sales tax and a small remainder. Finally, the Seller was awarded payment of interest according to Art. 78 CISG as far as the monetary claim was mature. The interest rate was determined by the domestic law otherwise applicable to the contract (i.e. Dutch law), absent an express provision in CISG. |