Date: 29.05.2007
Country: Netherlands
Number: C051069/HE
Court: Gerechtshof's Hertogenbosch
Parties: --
A Belgian seller and a Dutch buyer concluded a contract for the sale of a machine. After delivery, the seller sent an invoice to the seller which contained a clause stating: “the property in the goods does not pass on to the buyer until complete payment”. The seller's standard terms provided also for a retention of title clause. Although the invoice was not paid in full, the buyer resold the machine and leased it back from a third party. Subsequently, the buyer was declared bankrupt and the seller claimed for payment of the outstanding purchase price plus damages resulting from the buyer's unlawful conduct.

The Court of First Instance rejected the seller's claims. In so doing, it ruled that, since the seller had not objected to the reservation of title clause printed in the invoice, it should be considered as having implicitly accepted it pursuants to Art. 18(3) CISG in connection with Arts. 8 and 9 CISG. Moreover, the seller had not demonstrated that there was a direct link between the damage allegledly suffered by it and the violation by the buyer of the reservation of title clause. The seller appealed.

On appeal, the Court first of all confirmed the lower court's finding that the case was governed by CISG (Art. 1(1)(1) CISG).

As to the merits, the Court found that it had been neither submitted nor proven that the written contract between the parties contained the reservation of title clause, nor that such a contract was governed by the seller's standard terms. Moreover, even if the one between parties was a long-term business relationship, it was neither certain nor proven that the retention of title amounted to an usage or practice between them (Art. 9(1) CISG). Therefore, since the buyer had not expressly nor implicitly accepted the reservation of title in favor of the seller before the conclusion of contract, and its silence or inactivity with respect to the invoice content could not amount to an acceptance (Art. 18(1) CISG), the seller's claims had to be dismissed.