Belgium 10 July 2001 Commercial Court Oudenaarde (Textile case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010710b1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: A.R. 44/97
CASE HISTORY: 2d instance Hof van Beroep Gent 8 November 2004
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Belgium (defendant)
GOODS INVOLVED: Textiles
CISG-Belgium database of Katholieke Universitiet Leuven
Jurisdiction -- Art. 2 of Brussels Convention -- residence of defendant -- Belgium -- Belgian Court has jurisdiction. Applicable law -- Convention on the Law Applicable to Contracts for the International Sale of Goods (Hague Conference, 15 June 1955) -- residence of seller -- Italy -- CISG applicable in Italy. Alteration by party of type of textile -- not modification, but counter-offer. Acceptance by buyer of postponement of delivery -- if delivery in this time -- not late delivery. Interest rate -- residence of debtor -- Belgian rate.Go to Case Table of Contents
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
14A [Criteria for an offer (basic criterion): intention to be bound in case of acceptance]; 18A2 [Acceptance of offer (criteria for acceptance): conduct indicating assent]; 19A1 ["Acceptance" with modification (reply purporting to accept but containing additions or
modifications): in general, constitutes rejection and counter-offer]; 23A [Time of conclusion of contract: contract concluded when acceptance becomes effective]; 33A [Time for delivery: on date fixed or determinable from contract]; 78B [Rate of interest]
14A [Criteria for an offer (basic criterion): intention to be bound in case of acceptance];
18A2 [Acceptance of offer (criteria for acceptance): conduct indicating assent];
19A1 ["Acceptance" with modification (reply purporting to accept but containing additions or modifications): in general, constitutes rejection and counter-offer];
23A [Time of conclusion of contract: contract concluded when acceptance becomes effective];
33A [Time for delivery: on date fixed or determinable from contract];
78B [Rate of interest]
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CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Dutch): CISG-Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/2001-07-10.html>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
10 July 2001 [A.R. 44/97]
Translation [*] by Maarten Draye [**]
S.r.l. L.E., a company under Italian law, having its legal seat in Vaiano Loc, Italy, (...), Plaintiff on the main claim, Respondent on the counterclaim [Seller]
NV B., [a company under Belgian law], having its legal seat in Haaltert-Heldergem [Belgium] (...). Defendant on the main claim, Claimant on the counterclaim [Buyer].
1. Procedural aspects
1. The facts and circumstances, as well as the subject of the dispute, were explained in their totality in the intermediary judgment dated 22 June 1999 and are at this place considered to be repeated.
Before passing judgment on the merits, the court has ordered the reopening of the debates ex officio, in order to allow the parties to present their written arguments in relation to the applicable legal provisions and the legal consequences deriving thereof, considering the fact that the claim at the basis of the present proceedings is based on crossborder contracts for the purchase and sale of moveable goods.
2. In their written submissions, submitted after the intermediary judgment, both parties agree that the Vienna Sales Convention of 11 April 1980 [further referred to as CISG] applies.
Article 2 of the European Execution Treaty of 27 September 1968 sets out the basic rule of jurisdiction, which allows for a Defendant domiciled on the territory of a Contracting State to be summoned before the courts of that State.
As the Defendant [Buyer] has its legal seat in Haaltert-Heldergem, the present Court has therefore, pursuant to the abovementioned article 2, jurisdiction to assess the present dispute.
B. Applicable law
1. As mentioned above, the contractual relation between the parties relates to three international sales agreements of moveable goods, namely textiles.
The rules of private international law applicable to this legal relationship are governed by the Hague Convention of 15 June 1955.
The fact that Belgium has withdrawn from this Convention and that this withdrawal has taken effect from 1 September 1999 onwards (B.S. 30 June 1999, 24535), does not prevent that in the present case, given the date of the sales agreements in dispute (March, April and May 1995), the rules of reference contained in the abovementioned Convention are to be applied.
This Convention provides a two-tier rule as rule of reference:
In the case at hand, it does not appear from the exhibits brought forward that the parties have made a choice of law, either explicitly or impliedly. As a consequence, the law of the residence of the seller, in the case at hand, Italian law, applies.
2. The CISG has been part of Italian law since 1 January1988. The sales agreements in dispute date from March, April and May 1995 and therefore came into existence after the coming into force of the CISG in Italy. As a result, the CISG applies in the present case.
C. The [Seller]'s main claim
The [Buyer] disputes the main claim for reasons of (1) multiple late deliveries and (2) the non-delivery of KABUL fabric by [the Seller].
(1) Article 33 of the CISG provides that, when the sales-agreement or a later agreement between the parties has determined a date of delivery, that date binds the seller (HERBOTS J., "Verplichtingen van de verkoper" in Het Weens Koopverdrag, eds. VAN HOUTTE H. e.a., Intersentia, 1997, p. 109). The court must therefore assess in the case at hand whether the deliveries by [the Seller] were late. In doing so, it must take into account the dates agreed between the parties, and not the dates requested by the [Buyer] in the order letters:
In a fax-message dated 24 May 1995, the [Seller], moreover, stated that two of the articles ordered could not be delivered before end of June 1995 - early July 1995, while the other articles would be delivered by mid-June.
In a fax message dated 24 May 1995, the [Buyer] responded that it wanted the delivery, at the latest by mid-June (1995), in default of which it would not accept the delivery.
In a fax message dated 5 June 1995, the [Seller] requested the confirmation of the [Buyer] that it would accept those goods that would only be delivered at the end of June - beginning of July (1995).
In a fax message dated 6 June 1995, the [Buyer] responded that the goods ordered had to be in its possession before 7 July 1995.
This order was delivered in part on 9 June 1995, while the remaining part was delivered during the first week of July 1995.
From the documents submitted, it appears that orders no. 21463 and 22105 have been delivered within the proposed limitations, and even earlier than anticipated.
As far as order no. 22713 of 20 April 1995 is concerned, an agreement originally existed between the parties that delivery would take place by mid-June 1995. In its fax message of 6 June 1995, the [Buyer], however, agreed to a postponement of the time of delivery to 7 July 1995 for two items of the order. As this newly agreed time of delivery was respected by the [Seller], there can be no finding of a late delivery by the [Seller].
(2) Pursuant to article 23 of the CISG, an agreement comes into existence at the moment on which the acceptance of an offer becomes effective.
A proposal to conclude an agreement, directed at one or more specific persons constitutes an offer, on the condition that it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance (article 14(1) CISG).
Article 18(1) of the CISG stipulates that a statement made by or other conduct of the offeree indicating assent to an offer constitutes an acceptance.
Article 19(1) of the CISG prescribes that a reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.
In the case at hand, the [Buyer] made an offer in the sense of article 14(1) CISG to buy 100 meters of KABUL fabric in its order letter dated 20 April 1995.
In contradiction to what the [Buyer] submits, no agreement has come into existence between the parties with regard to the KABUL fabric.
In its written response dated 21 April 1995 to the offer by the [Buyer], the [Seller] proposed a modification in the sense of Article 19(1) of the CISG relating to the KABUL fabric, more specifically by suggesting the delivery of LIMA fabric as an alternative for KABUL fabric.
As demonstrated by the subsequent correspondence between the parties, the [Buyer] did not accept this counter-offer.
In its letter dated 16 May 1995, the [Seller] therefore stated very clearly that it could not confirm the delivery of the KABUL fabric ("nous ne pouvons pas confirmer cet article").
Afterwards, the [Seller] proposed another counter-offer, in which it proposed to start up the production of the KABUL fabric after all, provided that a minimum order of 100 meters would be placed. However, the [Buyer] did not want to agree to this counter-offer either.
In these circumstances, there can therefore be no finding of a failure by [the Seller] to meet its contractual obligations.
Consequently, the [Seller] is entitled to the amount due under invoice no. 581 dated 5 May 1995.
Moreover, the [Seller] is entitled to interest (article 78 CISG).
As no formal notice of default is required for interest to start accruing (VAN HOUTTE H., "Het Weens Koopverdrag in het Belgisch recht", T.B.H., 1998, 353), interest can be awarded from the date on which the invoice became overdue, being 5 June 1995, onwards.
Article 78 CISG does not determine which interest rate is to be applied.
The interest rate that is to be applied is either the legal interest rate of the place where the debtor has its residence (NEUMAYER, K. & MING, C., Convention de Vienne sur les contrats de ventes internationales de marchandises, Cedidac, 1993, 303) or the rate under the law of the currency used (VAN HOUTTE H., o.c., 352). In both hypotheses, the legal interest rate in force in Belgium is to be applied (as the debtor - [Buyer] has its residence in Belgium and the currency of payment is Belgian).
The [Seller]'s main claim is therefore considered to be founded.
D. The [Buyer]'s Counterclaim
Considering the above, the [Buyer]'s counterclaim is considered to be unfounded.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of Belgium is referred to as [Buyer].
** Maarten Draye, Lic. Jur. (K.U. Leuven), M. Econ. Pol. (K.U. Leuven, LL.M. Queen Mary, U of London) is a member of the Brussels Bar where he works as an Associate at the law firm of Hanotiau & van den Berg. His practice focuses on both domestic and international commercial litigation and arbitration. Maarten Draye can be contacted at <email@example.com>.Go to Case Table of Contents