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CISG CASE PRESENTATION

Belgium 25 April 2001 District Court Veurne (BV BA G-2 v. AS C.B.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010425b1.html]

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

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Case identification

DATE OF DECISION: 20010425 (25 April 2001)

JURISDICTION: Belgium

TRIBUNAL: Rechtbank van Koophandel [District Court] Veurne

JUDGE(S): P. Deseyne, M. D'hooge, M. De Hansetters

CASE NUMBER/DOCKET NUMBER: A/00/00665

CASE NAME: BV BA G-2 v. AS C.B.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Belgium (plaintiff)

BUYER'S COUNTRY: Czech Republic (defendant)

GOODS INVOLVED: Diesel tram


Case outline

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

Application of CISG: applicable in Belgium and Czech Republic

Notice of lack of conformity: two months too late

Damages clause: party autonomy, consent necessary for validity

Interest rate: currency of payment

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 1(3) ; 4 ; 6 ; 9 ; 11 ; 19 ; 35 ; 38 ; 39 ; 78

Classification of issues using UNCITRAL classification code numbers:

1C1 [Irrelevance of civil or commercial character of parties or contract];

4B [Scope of Convention: validity (damages clause: consent necessary for validity)];

6A [Exclusion or modification of Convention by contract: autonomy of parties]

9C [Practices established by the parties];

11A [Writing or other formality for conclusion of contract];

19A [Acceptance with modifications];

35B [Conformity of goods to contract: requirements imposed by law];

38A [Buyer's obligation to examine goods]

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

78A ; 78C [Rate of interest; Currency of payment]

Descriptors: Scope of Convention ; Validity ; Autonomy of parties ; Conformity of goods ; Usages and practices ; Formal requirements ; Acceptance of offer ; Examination of goods ; Lack of conformity notice, timeliness ; Interest ; Currency issues

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Editorial remarks

Excerpt from Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at 394 and n.270 (citations omitted)

"Resistance to homeward trend interpretations was demonstrated in [this] case. ... [T]he buyer sought avoidance of the obligation to pay the contract price. The buyer framed its case on 'non-conforming delivery' and 'latent defects,' drawing on the Belgian Civil Code for authority. Relying on existing case law and authoritative commentary, the Belgian court ... held the CISG alone to be the applicable law and insisted the '[t]he CISG knows only one uniform law of conformity.' Within the CISG 'no distinction is made between a guarantee against latent defects and the seller's obligation to deliver. The seller must deliver conforming goods and that is all'." (page 394).

The court also stated that "standard terms regarding contractual damages mentioned in a seller's invoice were not part of the contract because there was no evidence that the buyer had knowledge of the standard terms and so could not accept them. The written contract did not even mention the standard terms." (footnote 270).

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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=953&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): CISG Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/WK/2001-04-25.html>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=953&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Liu Chengwei, Recovery of interest (November 2003) n.230; 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); Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings]

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Case text (English translation)

Queen Mary Case Translation Programme

District Court (Rechtbank van Koophandel) of Veurne

BV BA G-2 v. A.S. C.B.

25 April 2001

Translation [*] by Vincent Naveaux [**]

Translation edited by Sieg Eiselen [***]

PARTIES: COUNSEL. BV BA G-2 [seller], having its head office in Nieuwpoort, registered in the trade register in Veurne, Belgium, Plaintiff on principal claim and Defendant on counterclaim versus A.S. C.B. [buyer], having its head office in Liberec, Czech Republic, Defendant on principal claim and Plaintiff on counterclaim, electing domicile at the office of its counsel in Brussels.

CASE HISTORY. Having regard to the writ served on 22 May 2000 and having regard to the deposited submissions and exhibits, the parties were heard at the court session of 28 March 2001 where the debates were closed and the case was taken under consideration and set for decision at the hearing of 25 April 2001.

I.  FACTS AND PLEADINGS

      1. [Seller's position]

By summons of 22 May 2000, the [seller] lodged a claim against the [buyer] for the payment of Bf [Belgian francs] 550,000 in principal, composed of:

- balance of the invoice no. 990038 dated 20 July 1999:    Bf 500,000
- contractual damages clause: Bf   50,000
Bf 550,000

with contractual interest at 12% per annum from 20 July 1999 and legal interest at the contractual interest rate of 12% per annum.

With the above-mentioned invoice, the [seller] charged the total price of Bf 1,500,000 for the sale of a diesel tram, "San Francisco" type GOPO SF 200 diesel; on that invoiced amount, the [buyer] paid Bf 1,000,000; thus, [buyer] is still indebted to the [seller] for the above mentioned balance.

     2. [Buyer's position]

The [buyer] contests the claim for payment; for as it appeared on delivery, the tram did not comply with the order; the vehicle was so ridden with latent defects to the extent that the tram was completely unfit for its intended use.

By counterclaim, the [buyer] demands the dissolution of the contract and judgment against the [seller] for the reimbursement of [buyer] in the amount of Bf 1,000,000 (amount already paid on the sale price), plus damages of Bf 733,600. In an alternative claim, the [buyer] claims at least the "price reduction" and/or damages of Bf 733,600.

     3. [Seller's reply]

In rebuttal, the [seller] rejects the [buyer]'s defense and counterclaim. [Seller] points, inter alia, to the absence of timely protest and the acceptance by [buyer] of the tram without any reservations.

II. COURT'S ASSESSMENT

     1. Applicable law

The [seller] demands the payment of the balance of the purchase price following an international sale of goods, namely, a diesel tram.

Regarding the question of the law applicable to the contract of sale, the [seller] states on page 10 of his second submission (deposited on 21 December 2000) that in this case "Belgian law" should be applied, in which legal system it is more particularly specified that a claim on account of latent defects has to be filed "within a short period, i.e., within a year after the discovery of the defect." Further, the [seller] states that Article 39(2) of the United Nations (Vienna) Convention on Contracts for the International Sale of Goods of 11 April 1980 (hereinafter CISG), invoked by the [buyer], "only relates to private persons and not traders."

The [buyer] formally concedes to the application of the CISG in the present dispute (submission deposited on 29 January 2001, page 15-16), yet on the other hand, raises arguments (and persistently so) regarding "non-conforming delivery" (and cites Article 1615 of the Belgian Civil Code relating to the accessories of the goods sold and referring to Belgian case law concerning domestic sales, which predates the CISG's entry into force in Belgium) as well as, in the alternative claim, regarding "latent defects" which make the tram unsuitable for the intended use, with reference to Article 1641 of the Belgian Civil Code.

The Court finds that the [seller] is established in Belgium and the [buyer] is established in the Czech Republic. Both countries are Contracting States to the CISG (the CISG entered into force in Belgium on 1 November 1997 and in the Czech Republic on 1 January 1993 formerly the Czechoslovak Socialist Republic; on 30 September 1993 the Czech Republic deposited with the United Nations a declaration of "succession").

According to Article 1(1)(a) CISG, the Convention is applicable to contracts of sale of movable goods between parties whose places of business are in different States when these States are Contracting States; thus, the CISG determines directly the criteria of its territorial application so that no reference need be made to the otherwise applicable rules on the governing law (cf. J. Meeusen, "Belgisch international contractenrechjt in Europees perspectief" in X., "Overeenkomstenrecht", Verslagboek van de XXVIste postuniversitaire cyclus Willy Delva 1999-2000, p.379 e.v., inz. nr. 490, p. 388).

- Furthermore, the sale was concluded after the date on which the Convention entered into force in both countries, so on that point the condition contained in Article 100(2) CISG has been satisfied.

- Finally, Article 1(3) CISG determines unequivocally that the civil or commercial character of the contract is not to be taken into consideration in determining the applicability of the Convention.

Therefore, the present case has to be decided taking into consideration the provisions of the CISG, in particular Article 4 which stipulates that the Convention governs the rights and obligations of the seller and the buyer arising from the contract and also the formation of the contract of sale (including the regulation of sanctions in the event of improper performance by the parties - cf. H. Van Houtte et al, "Het Weenskoopverdrag", p. 44, nr. 1.51). It is all the more conclusive that there are no indications that the parties wished to contractually exclude the application of the CISG.

     2. Principal claim of seller

The [buyer] does not dispute the calculation of the amount of Bf 500,000 claimed in payment of the balance of the invoice; however, [buyer] blames the [seller] for improper performance and, thus, by counterclaim asks for the dissolution of the contract. Consequently, the decision on the principal claim of [seller] will depend on the decision on [buyer]'s counterclaim (infra, nr. 3).

     3. Counterclaim of buyer

As indicated above, the [buyer] relies on the "non-conforming delivery" and on "latent defects", and, according to the reasoning set forth in the submissions, relies on defenses and develops arguments which are if not exclusively, then in main derived from the material law concerning sales as regulated by the Civil Code in the domestic Belgian legal order.

However, as indicated above, the provisions of the CISG must be applied to the contract.

The CISG knows only one uniform concept of conformity (S. De Groot, "Nonconformiteit volgens het Weens Koopverdrag", T.P.R., 1999, p. 635 et seq., in particular at pp. 638-652). Under the regime of the Convention, no distinction is made between a guarantee against latent defects and the seller's obligation to deliver: the seller must deliver conforming goods and that is all (Commercial Court of Courtrai, 20 April 1998, T.W.VR., vol.3, p.70; H. Van Houtte et al, op.cit., p.124, nr.4.36).

On the other hand, under Articles 38 and 39 CISG, the buyer must examine the goods, or cause them to be examined, within as short a period as practicable having regard to the circumstances, as well as give notice to seller within a reasonable time with sufficient particularity of the lack of conformity the latter obligation being sanctioned with the loss of the right to rely on the lack of conformity.

In the case at hand, the [buyer] relies on the following defects of the diesel tram, which was delivered in Liberec on 6 August 1999 (cf. [buyer]'s brief, exhibit no. 22).

Such defects can be established if not immediately on delivery, then certainly on the occasion of the first (test-) drive of the tram, and consequently could be discovered by the [buyer] on the basis of a reasonable inspection within a normal testing period of only a few working days after the arrival of the tram in Liberec on 6 August 1999; the deficiencies or defects are not deficiencies or defects which could only have been discovered after an intensive and/or continued use of the tram (cf. S. De Groot, op. cit., pp. 663 and 665).

Concerning the speed of the diesel tram, which the [buyer] alleges is limited to 25 km per hour while it should at least reach 40 km per hour, it first has to be noted that the signed contract of 7 May 1999 did not contain any specifications on that subject. [Buyer] did not prove that a minimum speed of 40km/h had been agreed upon. Since the "diesel tram" actually appears to be a small tourist train, and as such is used by the [buyer] for promotional purposes (cf. [seller]'s brief, exhibit no. 24), a speed of 25 km per hour is not incompatible with the "ordinary use" and/or the "particular purpose" mentioned in Articles 35(2)(a) and (b) CISG. Therefore, no improper performance can, on this basis, be ascribed to the [seller].

Subsequently, the Court finds that the [buyer] expressed concerns on the above mentioned deficiencies for the first time by fax letter dated 18 September 1999, when [buyer] transmitted a list of the defects to the [seller]. The [seller] states on that subject that this fax is backdated and that it was actually transmitted for the first time on 21 October 1999 after a formal notice for payment of the balance had been delivered on 14 October 1999 ([seller]'s brief, exhibits no. 6 and 7). Furthermore, the [seller] formally denies that the [buyer] made any complaints (oral/telephonic) before that time.

The burden of proof concerning the timely (and sufficiently specific) protest lies on the buyer (S. De Groot, op. cit., pp. 686-688). The [buyer] has failed to prove that it gave notice, orally or telephonically, of the defects or deficiencies of the diesel tram to the [seller], prior to the fax letter dated 18 September 1999. The [buyer] also has failed to prove when [buyer] sent this fax letter dated 18 September 1999 to the [seller]; in particular, [buyer] has failed to present any transmission report of sending the letter by fax.

From the above, it has to be decided that the [buyer] in the present case lost the right to rely on the non-conformity of the diesel tram in accordance with Article 39(1) CISG: on 15 August 1999, the [buyer] already had knowledge of the (alleged) non-conformity of the tram, or ought to have discovered the defects through a reasonable inspection, and only on 21 October 1999 did [buyer] give notice to the [seller]. Such a late notice, after the lapse of more than two months since the [buyer] had knowledge of the (alleged) non-conformities, does not comply with the requirement of a "reasonable time"; indeed, the buyer had no reason to delay its protest once [buyer] actually established that the delivery was not in conformity with the contract (H.Van Houtte, op. cit., no. 5.48, p.176). In most cases, a period of more than one month is considered as being late (S. De Groot, op. cit., p. 675; H.Van Houtte, op. cit., no. 5.50, p.177); the [buyer] is therefore affected by the loss of the right even if [buyer] had given notice of the deficiencies to the [seller] on 18 September 1999, quod non.

The period of two years provided for in Article 39(2) CISG, and invoked by the [buyer], cannot be of any help to [buyer] since it relates to an absolute limit, which is, besides, of a subsidiary nature; it is applicable only where the buyer could not have protested earlier because the lack of conformity did not come to light before then (cf. H. Van Houtte et al, op. cit., no. 5.53, p.179), which is not the case here.

From the above, it is held that the [buyer]'s counterclaim is unfounded; and that the [seller]'s claim for the amount of the unpaid balance of the invoice, i.e., Bf 500,000, is founded.

     4. Additional claims of seller

As far as the additional claims of [seller] are concerned (contractual damages clause, contractual interest), it has to be noted that Article 6 CISG is based on the principle of party autonomy (the parties may exclude the application of the Convention, derogate from or vary the effect of any of its provisions) and Article 9 CISG postulates the binding force of usages to which the parties have agreed and of any practices which they have established between themselves. At the opposite end is Article 19 CISG, which contains strict rules concerning offer, acceptance and modification of the terms, and which requires complete agreement before the contract comes into existence; thus, mere silence does not amount to an acceptance (J. Meeusen, "Totstandkoming van de overeenkomst", in H.Van Houtte et at, op. cit., nos. 3.56, 3.58 and 3.60, pp.91-94; according to H.Van Houtte, doubt is cast by the provisions of the Convention on the Belgian opinion that the general terms of the invoice are binding because the buyer tacitly accepted them: see "Het Weens Koopverdrag in het Belgish recht", T.B.H., 1998, p. 344 et seq., in particular no. 22, p. 350 ; cf. Commercial Court of Hasselt, 2 December 1998, R.W., 1999-2000, 648).

In this case, there is no proof that the [buyer] at the time of conclusion of the contract -- which forms the basis for the claim for the balance of the invoice in this action -- had knowledge of the standard terms of the [seller] and thus had accepted them. In the written contract dated 7 May 1999 ([buyer]'s brief, exhibit no. 2), these standard terms do not appear; there is not even a reference to these standard terms. Consequently, the invoice terms of the [seller] cannot be applied.

The [seller] is entitled to a claim for interest because of the late payment, under Article 78 CISG.

Whereas the CISG does not itself determine the interest rate in the case of late payment, this interest rate is determined according to the law of the currency of payment (cf. H. Van Houtte, "Het Weens Koopverdrag in het Belgish recht", T.B.H., 1998, p. 344 e.v., inz. No. 33, pp. 352-353); in this case, the Belgian legal interest calculated from the date when the payment should have been made, namely, the date of delivery (6 August 1999) according to the contract of 7 May 1999.

     5. Seller's argument against the possibility of consignment of debt

The [seller] requested the exclusion of the possibility that the [buyer] might avoid enforcement by consigning the amount owed. That action is a fundamental right of the debtor and [seller] cannot limit himself to a few clichés to justify a decision of this kind but instead must prove that the delay in the payment exposes [seller] to a serious disadvantage. Since the [seller] does not present any proof in that respect, his claim for the exclusion of the possibility of consignment cannot be taken into account (see Gent, 1ste Kamer, 17 April 1997, A.R. 1997/564 intake Mafar/Fenestra).

III. THE COURT'S RULING

Considering Article 2 and following the Law of 15 June 1935 on the use of language in judicial cases; on these grounds, the Court, having heard both parties, any other decisions being rejected:

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Belgium is referred to as [seller]; the Defendant of the Czech Republic is referred to as [buyer]. Monetary amounts in Belgian francs are indicated as [Bf].

** Vincent Naveaux, Attorney at Law, Brussels Bar, Stibbe in association with Gleiss Lutz and Herbert Smith, Lic. Jur. (University of Louvaine, 2000), LL.M. University of London, Queen Mary, 2001). The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.

*** Sieg Eiselen is Professor of Private Law, Faculty of Law, University of South Africa; Advocate of the High Court of South Africa.

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Pace Law School Institute of International Commercial Law - Last updated November 19, 2004
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