Belgium 16 December 2002 Appellate Court Antwerpen (Steel plates case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/021216b1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 2001/AR/1737
CASE HISTORY: 1st instance Rb Hasselt 10 April 2001
SELLER'S COUNTRY: Belgium (plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: Steel plates
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
8C [Interpretation of party's statement or other conduct: interpretation in light of surrounding circumstances]; 35A ; 35B1 ; 35D [Conformity of goods to contract: quality, quantity and description required by contract; Requirements implied by law: fitness for purpose for goods of same description; Other issues concerning conformity of goods: burden of proof]
8C [Interpretation of party's statement or other conduct: interpretation in light of surrounding circumstances];
35A ; 35B1 ; 35D [Conformity of goods to contract: quality, quantity and description required by contract; Requirements implied by law: fitness for purpose for goods of same description; Other issues concerning conformity of goods: burden of proof]
Overview comments (CISG-Belgium database): "To determine quality – agreement and normal use of goods. Non-conformity of goods – must be proved by buyer that existed at moment of delivery – not proved – to ask expert to investigate – not possible at this stage to determine when problem was caused."
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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/2002-12-16.html>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English:  S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 175Go to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
16 December 2002 [2001 AR 1737]
Translation [*] by Kristof Cox [**]
The original claim was filed by N.V. C... [Seller] of Belgium who demanded that B.V. A... [Buyer] of Netherlands be ordered to pay the countervalue in Belgian francs [BF] of the sum of 17,800.30 Dutch florins [NFL], with judicial interest and costs. The [Buyer] in its memorandum filed a counterclaim for payment and remuneration of 7,907.60 NFL, exchangeable in BF, plus interest.
The Court of First Instance declared the [Seller]'s claim admissible and justified and ordered [Buyer] to pay 17,196.30 NFL, exchangeable in BF, plus interest at the rate of 10 % per year on 15,633.30 NFL from 4 November 1999 to 21 March 2000, plus judicial interest on 17,196.30 NFL at the legal interest rate from the day of the service of the writ of summons to the day of full payment and the costs. The Court of First Instance rejected the [Buyer]'s counterclaim as unfounded.
[Buyer]'s appeal aims at the quashing of this judgment and the rejection of the [Seller]'s claim, at least for the appointment of an expert. Buyer further reiterates its counterclaim requesting the Court to order payment of 7,906.60 NFL, as reimbursement for the costs of replacement of defective steel plates, plus interest at 10 % since 14 February 2001 till the day of payment.
The arguments of [Buyer] are:
|-||The delivered plates had a hidden defect, that could not be discovered by a
professional at the first examination and from which resulted the non-conforming
|-||[Buyer]'s reaction against the faulty delivery was timely. Both punched and
unpunched plates are in stock. Therefore an examination of both types of plates can
lead to a solution;
|-||There is at least a start of evidence that there were hidden defects in the delivery which justifies an expert examination.|
The [Seller] asks the Court to affirm the judgment under appeal.
On the basis of the pleadings of the parties and the evidence, the Court considers as follows:
1. The object of the claims filed by the parties and the facts on which the claims are based, as well as the statements of the parties are explained in the appealed judgment in a detailed manner. The Court refers to those. Moreover, the Court accepts the judicious reasons of the Court of First Instance, that were not rebutted on appeal, and makes those its own.
2. According to the shipping note, the steel plates were eventually delivered on 5 November 1999 (week 44/99). Since the punch was already in use, the punching of the plates could only be started on 22 November 1999. During the punching, the punch blocked, according to [Buyer] because of the bad quality of the plates. [Buyer] complained about this in its fax of 2 December 1999.
3. The conformity of the delivery is disputed. [Buyer] states that great damage was caused during the punching because the plates were very uneven. Further, [Buyer] states that since it protested in a timely manner, it is for [Seller] to prove the opposite.
4. The applicability of the CISG is not disputed. Article 46(3) CISG states that if the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all circumstances. The buyer only loses the right to rely on the 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 after he has discovered it or ought to have discovered it. Thus, [Buyer] maintained this right to rely on it, even after it took possession of the goods.
5. The decision of the Court of First Instance decided that the behavior of [Seller] showed that it did not consider the complaint as non-timely, so that it can no longer invoke breach of Articles 38 and 39 CISG and that decision is not the object of appeal.
6. For purposes of this appeal, the Court has to examine whether the steel plates that were delivered were of the quality and description required by the contract and whether the plates were fit for the purposes for which goods of the same description would ordinarily be used (Art. 35 CISG).
7. The seller is obliged to deliver goods that are completely in conformity with the description that the parties have given explicitly or implicitly in the agreement.
If nothing is explicitly determined, the goods are only in conformity if they are fit for the purposes for which goods of the same description would ordinarily be used.
8. In the case at hand, an order was made for steel plates of the description: "RVS plate AISI316TI + certificate." A special purpose or use of the steel plates, however, was not mentioned. In the opinion of [Buyer], the steel plates showed irregularities when they were put in the punch. The behavior of [Seller] to go check the problems together with the producer raises the assumption that it was aware of the fact that the regularity of the plates was essential for the further production process.
9. Under Article 8(3) CISG, due consideration is to be given to all relevant circumstances of the case in determining the intent of a party, including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties. It may be assumed that the goods should conform to certain basic quality norms.
10. The burden of proof of the defect at the moment of delivery lies on the buyer. However, [Buyer] has not proved the existence of defects at that time.
[Seller] strongly denies the existence of the alleged defects. After the inspection, it denied all responsibility now that it was found the plates were already punched. [Buyer] does not contest this, however, [Buyer] states that two steel plates in which holes were only punched did allow the finding that there was tension in the plates before the punching.
11. This Court believes that the Court of First Instance should be followed in its finding that there was insufficient proof of the non-conformity of the plates. An evidentiary measure can be requested at any stage of the suit. In the current state of the procedure, though, it is impossible to determine when the defect has arisen, so that the appointment of an expert is not useful. [Seller] states correctly that the circumstances in which the plates were stalled is not known and that these may have had an influence on their appearance.
FOR THOSE REASONS
THE COURT RULES:
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Belgium is referred to as [Seller] and Defendant of Netherlands is referred to as [Buyer]. Amounts in the former currency of Belgium (Belgian francs) are indicated as [BF]; amounts in the former currency of Netherlands (Dutch florins) are indicated as [NFL].
** Kristof Cox is a researcher at the Institute for International Trade Law at the Catholic University of Leuven (Belgium). He is preparing a Ph.D. on the effects of an arbitration award on third parties. Further, he regularly publishes articles and case notes on the CISG and International Commercial Arbitration. Kristof Cox can be contacted at <Kristof.firstname.lastname@example.org>.Go to Case Table of Contents