Date: 11.02.2009
Country: Netherlands
Number: 172920/HA ZA 08-1228
Court: Rechtbank Arnhem
Parties: --
An Italian seller and a Dutch buyer entered into a contract for the sale of trees. The buyer refused to pay the price alleging either that some of the trees were of inferior quality or had not been delivered timely. The seller sued the buyer claiming payment of the price.

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).

As to the merits, the Court found that the parties were bound by the seller’s standard terms, as the buyer had signed and sent back the invoice to which such terms were attached without any complaint. In the Court's opinion, the sellers' standard terms derogated from CISG (Art. 6 CISG), as they provided for any notice of lack of conformity to be given within five working days after delivery. The Court also deeemed the notice period to be reasonable within the meaning of Art. 38 CISG, taking into account the nature of the goods (perishable) and the fact that the buyer himself had agreed upon such a period under the standard terms.

Regarding the seller's argument that it had not received a timely notification by the buyer (i.e. within five working days after delivery of the goods), the Court stated that it was up to the buyer to prove the opposite. The Court also held that the means of communication used by the buyer to notify its complaints (fax messages and registered mails) were appropriate in the sense of Art. 27 CISG. Nevertheless, since the buyer had still to demonstrate which trees were non-conforming and what damages it had actually suffered, the Court postponed any further decision in order to give the buyer the possibility to produce relevant documents.