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| Abstract | ||||||||||||||||||
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| A Dutch individual ("the seller") ordered a German auctioneer ("the buyer") to sell by auction a painting attributed to the painter Henry van der Velde. According to the order, the rules applicable to contracts of sale were also applicable to the agreement between the parties as far as "material and juridical defects" of the painting destined to be auctioned were concerned. After being bought by a second German auctioneer, the painting was offered for auction to an internationally well-known auctioneer house. After an expert examination however the auctioneer house claimed that the painting could not be attributed to the said painter. As a consequence the buyer was sued by its own buyer (the second German auctioneer). Therefore the buyer commenced an action against the seller asking avoidance of the contract as well as reimbursement of the payment already made. The seller set up as a defense that the action brought by the second German auctioneer against the buyer had been time-barred.
The Court held the contract was governed by CISG. The Court specified that the exclusion contained in Art. 2(b) CISG did not apply as the case at hand did not concern a sale on an auction but an order to sell by auction. With respect to the claim of the second German auctioneer against the buyer, the Court found that it had been time-barred. Therefore the seller could not be sued for the non-conformity. According to the Court, this result was confirmed by the application of the principle of good faith in international trade, which is a general principle underlying CISG (Art. 7(1) CISG). The Court further held that the case would have been decided in favor of the seller even if the claim of the second German auctioneer against the buyer had not been time-barred. Art. 35 CISG prescribes that the delivered goods have to conform with the contract. In order to determine whether conformity is complied with, the time of delivery of the good is decisive, since the seller does not bear the risk of a lack of conformity arising only after delivery (Arts. 36(1) and 69(1) CISG). In the case at hand, at the moment of delivery there was no indication of any kind that the painting was no longer to be attributed to Henry van der Velde. Therefore the seller had made a conforming delivery. |