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CISG CASE PRESENTATION

Belgium 8 March 2001 Appellate Court Mons (Vetimo v. Aubert) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010308b1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20010308 (8 March 2001)

JURISDICTION: Belgium

TRIBUNAL: Cour d'appel [Appellate Court] Mons

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: R.G. 242/99

CASE NAME: S.A. Vetimo v. SARL Aubert

CASE HISTORY:1st instance Tribunal de commerce de Charleroi 28 January 1999

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Belgium (defendant)

GOODS INVOLVED: Metal Badge


Case outline

Reproduced with permission from CISG-Belgium database of Katholieke Universiteit Leuven

Application of CISG European Contracts Convention French law applicable CISG applicable in France

Notice of non-conformity too late and not sufficiently proved

Contract cannot be cancelled too late

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 39 [Also cited: Articles 35 ; 49 ]

Classification of issues using UNCITRAL classification code numbers:

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]

Descriptors: Lack of conformity notice, timeliness ; Burden of proof

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=749&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/2001-03-08.html>; see also Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=749&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.567, 569; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 27, 85, 165, 172; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 35 para. 49; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 158

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Case text (English translation)

Queen Mary Case Translation Programme

Cour d'appel de Mons
SA Vetimo v. SARL Aubert

8 March 2001 [R.G. 242/99]

Translation [*] by Katarina Kunce Kern [**]

Edited by Linus Meyer [***]

IN THE CASE OF SA Vetimo, with its registered office in 7130 Binche (...), registered at the commercial register in Charleroi (...) Defendant-Appellant [Buyer], publicly represented by its advisor, Maitre Grenier, solicitor at 6000 Charleroi (...) v. SARL Aubert, French company, with its registered office in F: 95812 Argenteuil (...); Plaintiff-Appellee [Seller], represented publicly by Maitre Dehaene, solicitor and his colleague Maitre Desmet, solicitor at 8500 Kortrijk (...).

After deliberation the Court, enters the following decision:

[...]

[Seller]'s pleading sought payment of an invoice of 28 March 1997 (49,236 French francs [Ff]) for the production of metal badges. The Court of First Instance accepted this.

[RULING OF THE APPELLATE COURT]

Considering that [Seller] is a French company, with its registered office in French territory, and the [Buyer] is a Belgian company with its registered office in Binche, the contract concluded between the parties, which is connected to several jurisdictions, is a contract for the international sale of goods.

For the law applicable to this contract, one has to refer to the Rome Convention of 19 June 1983 on the Law Applicable to Contractual Obligations, which entered into force in Belgian territory on 1 April 1991;

In the absence of a choice of law by the parties, paragraph 1 of article 4. of the Rome Convention stipulates that the contract shall be governed by the law of the country with which it is most closely connected; this criterion is specified by reference to several presumptions; according to the stipulations in part 2 of article 4, it is presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic at the time of conclusion of the contract has its registered office ...; the characteristic performance in a contract is the one for which payment is due; in case of a sales contract, the seller's performance is characteristic; therefore French law is applicable to the contract in this case; one reaches the same solution applying the Hague Convention of 15 June 1995.

Whereas, at the time of conclusion of this sale, the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods was applicable in France due to its ratification by that State (Belgium had not yet ratified the Vienna Convention). When international private law leads to the application of the law of a Contracting State, the dispositions of the Vienna Convention apply, not those of the French Code Civil.

The badges were delivered on 13 March 1997 and invoiced on 28 March 1997. The order expressly indicates the delivery address as [Buyer]'s location in Binche, Belgium;

In correspondence on 28 April 1997, the [Buyer] solicited a delay in payment. In other correspondence dated 5 May 1997, [Buyer] notified the [Seller] that the badges that were delivered were defective because of:

   -    blisters on certain badges;
   - illegibility of badges because the names were ingraved in colored gravel;
   - four or five cords were destroyed

Referring to the alleged defects, [Buyer] refers to article 35 of the Vienna Convention, according to which goods that are delivered must conform to the contract, regardless of the distinction between the guaranty of conformity and the guaranty against hidden defects; that goods have to be fit for the purposes for which goods of the same description would ordinarily be used;

Where a contractual party complains of defective execution and wishes to avoid the obligation to pay the price, the party has to report evidence of this default; this evidence has not been submitted to the court;

The order consisted of delivery of more of 1,600 badges. The [Buyer] deposited five badges (3 blistered and 2 attached clasp); the [Buyer] did not represent that its customer at the final destination, Royal Brunei Airlines, had refused acceptance or payment of the badges or declared it impossible to replace the declined badges;

The [Buyer] did not draw any consequence from the letter of 5 May 1997, by which the [Seller] invited it to return the badges that were allegedly defective for their examination and replacement; therefore the alleged defaults have not been sufficiently established;

Considering that article 39 of the Vienna Convention stipulates that buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time, the Court holds that in the circumstances of this case, this reasonable time was not respected;

Considering at last, that the [Buyer] expressed the application of the dispositions in article 49 (CISG) authorizing buyer to declare the contract avoided for the first time in appeal;

Article 49 authorizes a buyer to declare a contract avoided if the failure by the seller amounts to a fundamental breach of contract. However, the Court concludes that the reality and gravity of the alleged defects are not of the kind that establishes the existence of a fundamental breach.

In any event, the [Buyer] loses his right to declare the contract avoided, unless he acts within time prescribed in article 49(2)(b) of the Vienna Convention.

For all the above reasons, the appeal is not founded.

Based on these grounds the Court, according to article 24 of the Law of 15 June 1935 on employment of languages in judicial matters:

   -    Accepts the appeal and refuses it;
   -    Confirms the lower court judgment in its all dispositions;
   -    Orders the [Buyer] to pay the costs and fees in the appeal instance for [Seller] in the amount of 17,200 francs which represent the costs of the proceeding.

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellee of France is referred to as [Seller] and the Defendant-Appellant of Belgium is referred to as [Buyer].

** Katarina Kunce Kern, a law graduate of the University of Zagreb, is a member of the Bar of Croatia who has worked with French diplomats in Croatia.

*** Linus Meyer has studied in Osnabrueck, Germany, and Lausanne, Switzerland. He was a participant in the 12th and a coach in the 13th Willem C. Vis Moot.

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Pace Law School Institute of International Commercial Law - Last updated May 14, 2008
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