|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| 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 art dealer, 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 art dealer). 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 art dealer against the buyer had been time-barred.
The first instance Court (Rb Arnhem, 17.07.1997, abstract and fulltext in UNILEX, D.1997-12.1 and E.1997-12.1) found that the claim of the second German art dealer against the buyer had been time-barred. Therefore the seller could not be sued for the non-conformity by the buyer. According to the first instance 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 art dealer against the buyer had not been time-barred, according to CISG rules on passing of risk for lack of conformity of the goods (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. On appeal the Court withheld the first instance judgement but based it on a different reasoning. The Court denied the applicability of CISG to the relationship between the buyer and the seller. The relationship between the buyer and the second German art dealer was governed by the buyer's standard terms, which contained a choice of German law excluding CISG. Since the order given by the seller to the buyer expressly referred to the buyer's standard terms regarding sale by auction, and the seller had declared its agreement with the standard terms, it followed that the seller could not be unaware of the choice of German law made in the buyer's standard terms. In any case, the buyer's claim was rejected. |