Date: 09.07.2008
Country: Netherlands
Number: 120428 / HA ZA 07-550
Court: Arrondissementsrechtbank Maastricht
Parties: Agristo N.V. v. Macces Agri B.V.
A Dutch seller and a Belgian buyer entered into a contract whereby the former undertook to deliver all the potatoes harvested in the year 2006 (as expected, 440 tons) to the latter. According to the contract, the delivery was to take place between March and April, 2007. Due to extreme weather conditions, the harvested potatoes were inferior both in quality and amount than expected. The seller proposed to the buyer the delivery of all the available potatoes at the end of October 2006, as their low quality did not permit long periods of storage. The buyer agreed to have the goods delivered the following month, on condition that they were first cleaned. After the cleaning process, only 155,240 Kilos of potatoes were left. Ultimately, the parties agreed on the delivery of 92,538 kilos of potatoes. Later, the buyer requested delivery of the outstanding potatoes; as the delivery failed, the buyer terminated the contract and sued the seller for damages. In response, the seller contended that its failure to deliver part of the goods should be excused on force majeure grounds, and requested the payment of the purchase price for the amount of potatoes already delivered.

The Court held that the contract was governed by CISG as the parties had their places of business in Contracting States (art. 1(1)(a) CISG).

With respect to the merits, the Court had to ascertain whether the seller's non-performance was excusable under Art. 79 CISG.

First, the Court refused the buyer's argument that an impediment beyond control could not occur in the case at hand, as potatoes are generic goods and, therefore, the seller could have bought them elsewhere. In fact, the Court noted that the obligation to deliver was limited to those potatoes grown by the seller. However, the Court pointed out that a diligent grower in similar circumstances is expected to consider all possible weather conditions when entering into a contract for the sale of crops. Therefore, in the present the seller could have been exempted from performance only by showing that its non-performance was due to extreme weather conditions which made it impossible the achievement of at least 90% of crops, as compared to the preceding harvesting years (art. 79 CISG). To this purpose, the Court decided to ask for a detailed expertise from an independent appraiser and referred the case to a later court session.