PART D
TREE AND SHRUB SEEDS
Section I. Quantity
1. If no other indication states otherwise, the seller may deliver only 2% more or less than sold.
Section II. Assessment of damages
Damages due to inferior physical qualities
2. If a quality is delivered inferior to that called for by the contract, the following rules apply for
assessing the inferiority.
Inferiority as regards quality covers every negative departure from the agreed qualities.
For example, the following items can be concerned: purity, germination, content of the other seeds,
content of harmless impurities, moisture content, etc.
Purity and germination
3. The statements in the contract are to be given in percentages. Unless these are excluded,
latitudes must be allowed.
The tolerances are those of the ISTA or AOSA that are valid at the time of conclusion of the contract.
For purity see annex Table A and for germination see Table B.
The calculation of inferiority is according to the formula:
L x A
X= ------------
G
Where: X= the new price
L= the delivered quality
G= the guaranteed quality
A= the contract price
If the new price differs from the contract price by more than 10%, the buyer is also entitled to refuse
the delivery.
If both purity and germination are inferior, the inferiority is calculated in each case and the two results
added together.
If the contract does not state percentages but expressions such as “well cleaned”, “normal of the new
harvest”, etc. and the buyer has made a justified complaint in this respect, he has the right to re-clean
the seed at seller’s expense. In this case, seller must pay all the costs and damages incurred, both
direct and indirect, provided these are in accordance with commercial practice.
Content of other seeds and/or inert impurities
4. The content can be stated either as a maximum number or as a percentage without specific
description. In the latter case, a tolerance must be allowed. The relative tolerances are given in Table
B.
If there is inferiority in respect of the contents of other seeds the formula applies that the difference
between delivered and agreed quality has to be multiplied by 2.
The seller nevertheless has the right, either to pay compensation or have the seed re-cleaned at his
expense.
If the limit is exceeded by more than 10% of the contract price, the buyer is also entitled to refuse
acceptance.
5. If it is established that the delivery in respect of its purity is not as per contract, the buyer has
the right to refuse the seed or clean it at seller’s expense.
In the case of re-cleaning the seller must pay all the costs and damages incurred, both direct and
indirect, provided they are in accordance with commercial practice.
The tolerances laid down by ISTA or AOSA do not apply in this respect.
6. If the delivery does not correspond to other conditions of quality in the contract e.g. with
regard to the homogeneity, specified under Section VIII of general rules, these shall be decided by
arbitration unless a friendly settlement can be reached.
7
. If a delivery departs from the agreed guarantee on more than one point, the inferiority shall be
calculated in each case separately, with the exception provided in specific rule 2.
In calculating the inferiority, the parties may, if they wish so, take into account a better figure resulting
from other analysis.
8. The seller loses the benefit of the tolerances if these are exceeded.
Damages due to factors other than physical qualities
9. If damages arise in the fulfilment of a contract due to departure from conditions other than
physical qualities, the question whether damage has been occasioned and the amount thereof shall
be decided by arbitration, if friendly negotiations do not lead to an agreement.
In both cases of inferiority, the damage sustained or the inferiority itself shall be assessed by the
buyer on the basis of substantial evidence. Against this assessment the seller has the right to demand
that the agreed arbitration body fixes the amount of the damage.
Trueness to Variety
10. Seed sold labeled to variety can be sold in 2 ways:
1. Labeled as "Open Pollinated (OP) Seed": the resulting seedlings may not resemble the
mother plant. No warranty as to trueness to variety is implied by this label.
2. Labeled as the variety. Example: Acer palmatum 'Atropurpureum'. 80% of the resulting
seedlings should resemble the variety if labeled as such.
11. Claims for damages need to be made within 2 years of date of sale and damages will be
decided by arbitration.
