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CISG CASE PRESENTATION

Canada 14 November 2003 Superior Court of Justice, Ontario (Shane v. JCB Belgium)
[Cite as: http://cisgw3.law.pace.edu/cases/031114c4.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20031114 (14 November 2003)

JURISDICTION: Canada

TRIBUNAL: Superior Court of Justice, Ontario

JUDGE(S): Robert J. Smith

CASE NUMBER/DOCKET NUMBER: 02-CV-19871

CASE NAME: Stephen Shane and Donald Shane v. JCB Belgium N.V.

CASE HISTORY: See related proceedings Supreme Court of Justice, Ontatio, 4 January 2004 [calculation of attorneys' fees]

SELLER'S COUNTRY: Belgium (defendant)

BUYER'S COUNTRY: Canada (plaintiff)

GOODS INVOLVED: Farm tractor


Case abstract

CANADA: Ontario Superior Court of Justice 14 November 2003 (Shane v. JCB Belgium N.V.)

Case law on UNCITRAL texts (CLOUT) abstract no. 533

Reproduced with permission from UNCITRAL

Abstract prepared by Geneviève Saumier, National Correspondent

The Ontario buyers of a Belgian tractor brought suit against the vendor in Ontario after the tractor caught fire and burned while being used by the plaintiffs. The plaintiffs claimed damages for negligent manufacture and design. The defendant sought to have the suit removed to Belgium, arguing that Ontario was forum non conveniens. In the course of rejecting the jurisdictional argument, the Court held that the CISG applied to the contract. However, the judge found that the claim did not bring into question the CISG since it was put forward in tort. There was no analysis of the possible interplay between the CISG and the product liability claim under article 5 CISG.

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Classification of issues present

APPLICATION OF CISG: Yes, but the terms of the contract were not in dispute; the claim is in negligence. "The law which the parties agree applies is the CISG and as such the application of Belgium contract law is not a factor of great weight. A greater factor is that the law where the tort occurred should be applied for claims in negligence."

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 4

Classification of issues using UNCITRAL classification code numbers:

4A ; 4B [Scope of Convention: issues covered ; Issues excluded]

Descriptors: Scope of Convention

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Editorial remarks

Excerpt from Rajeev Sharma, "The United Nations Convention on Contracts for the International Sale of Goods: The Canadian Experience", Victoria University of Wellington Law Review (2005/4) 856

Shane v JCB Belgium NV made reference to the application of the CISG, but was in substance a tort case not a contract case. The plaintiff in this case operated a farm near Ottawa, Canada and purchased a tractor directly from JCB in Belgium. The tractor caught fire and burned while being used by Shane once he had brought it back to Canada. Shane claimed damages for negligent manufacture and design of the tractor and made the claim in Ontario where the damages were suffered. JCB disputed the jurisdiction and claimed that Belgium was the most convenient and appropriate forum for any such claim.

In this case the parties did not dispute that the CISG was the law to be applied to the contract itself, but the Ontario court held that there was a real and substantial connection between Ontario and the claim for damages advanced by the plaintiffs in their tort action against JCB Belgium. Given that this was a tort claim, no substantive discussion of the CISG took place.

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1169&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): CISG-Canada website <http://www.osgoode.yorku.ca/cisg/cases/shane>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1169&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Mazzacano, Canadian Jurisprudence and the Uniform Application of the CISG (August 2005) ch. 6

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Pace Law School Institute of International Commercial Law - Last updated March 7, 2006
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