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| Abstract | ||||||||||||||||||
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| A Dutch company producing chemicals and an U.S. company manufacturing products to be used for animal food entered into a long-standing business relationship, under which they concluded several contracts of sale. The Dutch company (the seller) commenced an action claiming full payment of three deliveries of goods. The US company (the buyer) on its part claimed that the parties had agreed to settle the claim by delivery of goods from the buyer to the seller. In addition the buyer claimed that the seller would have to pay damages as it had stepped back on another deal regarding sale of chemicals.
The Court held that CISG was applicable, either according to its Art. 1(1)(a), or - if the parties had validly chosen Dutch law - as part of the law of the Netherlands, a contracting State. The Court further found that the express reference to provisions of German law made by the parties in their pleadings and during the first instance proceedings was not sufficient to exclude the application of CISG to the contract (Art. 6 CISG). The Court stated that the defendant had to pay the purchase price according to Art. 53 CISG. The price was found to be due as there was no evidence that the parties agreed to settle the claim against purchase of buyer's goods. In order to reach this conclusion the Court interpreted the wording of the agreement and the interests of the parties according to Art. 8 (2), (3) CISG. Finally, the Court held that the defendant could not suspend performance of its obligation to pay the purchase price alleging that the plaintiff had not paid damages deriving from breach of negotiations between the parties. The Court stated that Art. 71(1) CISG requires a synallagmatic link between the performance to be suspended and the other claim. As the defendant's claim for damages did not arise in a mutual relation with the plaintiff's contractual claim, the Court held that the defendant had no right to suspend performance. |