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| A Belgian seller and a Dutch buyer entered into a contract for the sale of goods. Neither party signed a written agreement. A dispute arose after the buyer allegedly suffered damages because the seller did not respect the date of delivery. The seller denied responsibility for such damages and referred to its general terms and conditions, which stated that the time of delivery was only indicative and not binding. The buyer argued that he is not bound by these terms and conditions since he did not explicitly agree to them.
As to the applicable law, the Court held that CISG governed the agreement since the rules of private international law led to the application of the law of Netherlands, a Contracting State (Art. 1(1)(b) CISG). As to the merits, the Court held that the inclusion of the standard terms in the contract was a matter to be settled first by recourse to the general principles underlying the Convention (Art. 7(2) CISG). In the opinion of the Court, although the application of seller’s standard terms had not been expressly agreed upon by the parties, the standard terms were nonetheless incorporated into the contract. It was true that the invoice, on the back of which the standard terms were allegedly reproduced, was sent to the buyer only upon delivery of the goods. However, according to arts. 8 and 9 CISG, the practices established between the parties had to be considered. The fact that the general terms and conditions were stated on each of the invoices paid by the buyer constituted sufficient proof of conduct indicating assent according to art. 18(1) CISG. Having found that the time of delivery agreed upon by the parties was merely indicative according to the seller's standard terms, the Court dismissed the buyer's claim. |