Date: 07.11.1997
Country: Netherlands
Number: 16.436
Court: Hoge Raad
Parties: J.T. Schuermans v. Boomsma Distilleerderij / Wijnkoperij BV
The plaintiff, a Belgian tradesman with place of business in the Russian Federation, commenced an action against a Dutch producer of wodka, alleging that the producer owed him delivery of a certain quantity of wodka whose price had already been paid by the Belgian tradesman. According to the Belgian tradesman, though no formal conclusion of a contract had taken place, by accepting payment the Dutch producer had created the legitimate expectation that a contractual relationship had arisen.

The producer denied that a contract had ever been concluded with the Belgian tradesman. It alleged that the Belgian tradesman had acted as an intermediary for another Russian company, which was mentioned in the payment documents. The producer had an ongoing business relationship with the other company. Payment by the Belgian intermediary came shortly after the producer had received a fax from the other company, in which wodka was ordered and transfer of a certain sum of money as price thereof was announced. This procedure constituted standard practice between the producer and the other company.

At first instance (Rb. Leeuvarden, 11-08-1994) the Court applied CISG and held that no contract had been concluded between the Belgian tradesman and the Dutch producer, since payment by the Belgian tradesman was no offer in the sense of Art. 14 CISG. The appellate Court (Hof Leeuvarden, 05-06-1996) reached the same conclusion, though observing that the Belgian tradesman had its place of business in the Russian Federation, which is bound by a declaration pursuant to Arts. 96 and 12 CISG. Accordingly, the CISG provisions allowing an offer to be made in any form other than in writing do not apply, and the question should be solved under the applicable domestic law. Eventually, however, the question was decided all the same according to CISG because the private international law rules of the forum lead to the law of The Netherlands, a contracting State (Art. 1(1)(b) CISG).

The Supreme Court confirmed the lower Court's findings. It held that under Art. 8(1) CISG, the Dutch producer neither knew nor could have been aware of the fact that the Belgian tradesman meant its payment as an offer, especially considering that the payment documents referred to the other company and had come shortly after the other company's fax. Nor would it have been in accordance with the understanding of a reasonable person of the same kind as the producer and in the same circumstances to interpret the said payment as an offer (Art. 8(2) CISG). The producer did not have previous business contacts with the Belgian tradesman, while it did have past contacts with the other company all following the same pattern (fax ordering wodka and announcing payment, actual payment from various places and agents and subsequent delivery of the wodka by the producer).