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CISG-online number
5954
Case name
Q-railing glass partition for swimming pool case
Jurisdiction
Netherlands
Court
Rechtbank Gelderland (District Court Gelderland)
Judge
E. Boerwinkel (Sole judge)
Date of decision
27 July 2022
Case nr./docket nr.
C/05/393151 / HA ZA 21-468
Claimant 1
Respondent 1
Seller 1
Buyer 1
Category of goods
66: Non-metallic mineral manufactures, not elsewhere specified
Goods as per contract
"Q-railing" glass partition (length: 90 meters), for installation at a swimming pool in a holiday park in Italy
Price
43'579.90 EUR (Euro)
CISG applicable
yes, Art. 3(2)
CISG applied
yes
(Domestic) law applied in addition
Dutch law
Key CISG provisions interpreted and applied
Art. 3(2); Art. 74
Key CISG provisions interpreted
Art. 58(1); Art. 71
CISG provisions also cited
Art. 45(1)(b)
Non-provision-specific issues addressed
Contracting party's right to withhold (suspend) performance
European Case Law Identifier (ECLI)
ECLI:NL:RBGEL:2022:4102
Full text of decision 1
by Ulrich G. Schroeter
The factual background of the present case was the construction of a swimming pool in a holiday park in Italy. As the swimming pool was located next to a slope, the local authorities (implementing EU regulations) required that a sufficiently high partition be installed between the pool and the slope. The owner of the holiday park (buyer and Claimant in the present proceedings) contacted a Dutch manufacturer of glass partitions (seller and Respondent in the present proceedings), and the parties agreed on the delivery of a glass partition of 90 meters length which the seller would also install at the holiday park.
When the seller had transported the glass partition to the venue in Italy, various technical difficulties arose, and the partition was eventually not installed. The Italian buyer then brought the present suit against the Dutch seller.
In determining the CISG's applicability to the parties' agreement that covered sale and installation of the glass partition, the Court looked to the calculation in the seller's offer, which quoted an overall amount of € 43.579,90 of which an amount of € 10.800,00 was charged for the installation, and declared the CISG applicable in accordance with Art. 3(2) CISG (in para. 30 of the decision).
Referring to the payment terms agreed between the parties, the Court denies a right of the seller to withhold the delivery and installation of the glass partition until the buyer had paid the cost for the delivery (para. 39 of the decision); in doing so, the Court interprets Art. 58(1) CISG and Art. 71 CISG, but makes no reference to the general right to withhold performance that some courts have indentified as a general principle underlying the CISG (Art. 7(2) CISG). Finally, the Court discusses whether the buyer can claim compensation for different types of legal costs incurred as damages under Art. 74 CISG (paras. 46–48 of the decision).