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CISG CASE PRESENTATION

Belgium 6 January 2004 Commercial Court Hasselt (H.-S. v. NV C.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040106b1.html]

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

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Case identification

DATE OF DECISION: 20040106 (6 January 2004)

JURISDICTION: Belgium

TRIBUNAL: Rechtbank van Koophandel [Commercial Court] Hasselt

JUDGE(S): C. Beerten, Kk. Swartelé, D. de Preter

CASE NUMBER/DOCKET NUMBER: AR/02/04011

CASE NAME: H.-S. v. NV C.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Belgium (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Polo shirts


Case outline

CISG-Belgium database of Katholieke Universitiet Leuven

Non-conformity -- buyer only complained after his customer complained -- buyer had shirts 6 weeks -- too long to rely on art. [38/39] CISG -- not within reasonable period. Buyer’s statements that could not inspect goods because of package -- not proved -- could also have done spot check. Claim on extra-contractual liability -- formulated according to Belgian law -- [not sustained].

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Case abstract

CISG-Belgium database of Katholieke Universitiet Leuven

A German buyer bought polo shirts from a Belgian seller. Without examining the shirts, the buyer delivered them to another firm after six weeks. That firm complained that the shirts were too small, that the correct label had not been attached and that the textile make-up of the shirts was not as ordered. Subsequently the buyer complained to the seller for non-conformity and requested a credit note for the amount already paid. The buyer then sued the seller. The court found that the buyer had sufficient time to examine the goods (six weeks) and that he had not proved that the packaging made examination impossible. In subsidiary order, the buyer relied on extra-contractual liability according to the Belgian civil code. The court did not accept this claim, since the buyer had not proved that the damage caused by the seller had a source other than the contract.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 38 ; 39

Classification of issues using UNCITRAL classification code numbers:

38A ; 38C [Buyer's obligation to examine goods; Deferral of examination in case of redirection or redispatch];

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

Descriptors: Examination of goods ; Lack of conformity notice, timeliness

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Dutch): CISG-Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/2004-01-06.html>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

French: Claude Witz, Recueil Dalloz, No. 33 / 7218 (22 September 2005) 2282, 2290

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Case text (English translation)

Queen Mary Case Translation Programme

Rechtbank van Koophandel [Commercial Court] Hasselt

6 January 2004

Translation [*] by Yurishan G. Wilsoe [**]

Translation edited by Thalia Kruger [***]

[...]

<H.-S.> [Buyer] partnership according to German Law, with registered office in Schwarzenbach a.d. Saale, DE-95126 [...] Germany, Plaintiff, having as counsel Mr.Hallemans acting on behalf of Mr.Hoffmann, advocate,1050 Brussels [...]

vs.

<NV C.> [Seller] a company under the law of Belgium, with seat at 3920 Lommel [...], currently registered in the commercial register of Hasselt [...], Defendant, having as counsel Mr.Mertens acting on behalf of Mr.Verachtert, advocate, 3900 Overspelt [...]

JUDGMENT

I. PLEADINGS AND FACTS

Considering the initiating summons dated 20 November 2002 in which the [Buyer] claims payment from [Seller] in the amount of 32,734.75 Euro, plus the interest which is set, according to the legal rate of interest, at 12,398.25 Euro from 6 May 2002 and at 20,336.50 Euro from 4 September 2002, plus the legal interests and costs;

Considering the conclusions made by parties and the documents submitted;

Counsel for parties were heard during their oral pleadings given in the session on 23 December 2003.

      1. On 8 February 2002 [Buyer] ordered 2,000 polo shirts from [Seller], based on a sample previously sent to buyer. On the shirts, firm "R"s label was supposed to be attached. In addition, the material out of which the shirts were to be made was to consist of 65% cotton (200 g/m2) and 35% polyester.

The shirts that were ordered by [Buyer] had already been sold [by Buyer] to firm ["R"] in January 2002. The shirts [Buyer ordered from Seller] were delivered by [Seller] to [Buyer] on 15 April 2002. The clothing pieces were invoiced that same day for 12,396.25 Euro. On 27 May 2002, [Buyer] delivered the shirts to firm "R".

By letter of 28 May 2002, [Buyer] informed [Seller] that "R" had ascertained that the fit of the shirts and the attached label were showing signs of shortcomings and that the composition of the material did not conform to what was ordered. The material was to be subjected to an examination.

By letter of 28 May 2002, [Seller] expressed his astonishment over the voiced complaints, seeing that the goods were delivered and accepted over a month before.

On 6 June 2002, [Buyer] informed [Seller] that the examination of the material concluded that the material consisted of 75.4% polyester and 24.6% viscose.

By letter of 10 June 2002, [Seller] drew [Buyer]'s attention to the fact that the complaints could not be accepted because of the fact that [Seller]'s general conditions of sale provide that any complaints should be expressed within eight days.

By letter of 21 June 2002, [Buyer] informed [Seller] that:

-   Immediately after receiving the goods, he had informed [Seller]'s agent, Mr.Truyens, of the fact that the goods were light and optically did not correspond to the ordered material;
 
- He had delivered the goods to "R" under a specific time span and had paid [Seller]'s invoice with the understanding that no problems would arise;
 
- On receiving the goods, "R" had ascertained that the shirts were too small and that the label was poorly attached;
 
- Further examination brought to light that the compilation of the material was different than that which was agreed upon. This latter issue constituted a latent defect.
 
- [Buyer] was entitled to damages from [Seller] as a result of the non-compliance with the contract by [Seller].

By letter of 2 July 2002, [Buyer] declared that the shirts had not been accepted by firm "R" and had become unsellable.

[Buyer] asked for a credit note in the amount of 12,396.25 Euro.

By letter of 3 July 2002, [Seller] drew [Buyer]'s attention to the fact that he and his client had ample time to examine the goods, that the material was composed differently in order to achieve the required color; that the material used was more expensive than the one initially ordered; and that [Seller] was willing to compose a credit note up to the amount of 10% of the purchase price.

By letter of 9 July 2002, [Buyer] asserted that [Seller] could not unilaterally change the composition of the material. In this same letter, [Buyer] announced that he would hand over the file to his counsel.

By writ of 20 November 2002, [Buyer] summoned [Seller] to (re)pay the amount of 12,398.25 Euro, plus a compensation of 10,336.50 Euro for loss of profit and 10,000.00 Euro commercial loss.

      2. In his conclusions, [Buyer] increases his claim and claims loss of profit for an amount of 11,915.35 Euro. In addition, [Buyer] claims a finding of the avoidance of the contract.

      [3.] The sale executed between parties has a cross-border character, therefore the United Nations Convention on Contracts for the International Sale of Goods is applicable, because it applies in both Germany and Belgium. The parties do not contradict this.

      4. [Seller] is of the opinion that, since the goods were delivered on 15 April 2002 and for the first time by letter of 27 May 2002 were there any complaints expressed, [Buyer] has, considering the circumstances, neglected to examine the goods within as short a period of time as is practicable (art. 38 CISG) and has neglected to give notice of a lack of non-conformity within a reasonable time after he had discovered it (art. 39 CISG).

[Buyer] believes, invoking art. 38(3) CISG, that the point in time at which the goods should be examined can be deferred until the time at which the goods arrive at their new destination (R).

Art. 38(3) CISG stipulates that when the buyer re-dispatches the goods, without reasonably having an opportunity for examination and the seller at the time of conclusion of the contract knew or ought to have known of the redirection or re-dispatch, the examination may be deferred until after the goods have arrived at the new destination.

Whether the buyer reasonably had the opportunity to examine the goods depends on the length of time for which the goods were at his disposal before they were redispatched.

What is clear is that [Buyer] had received the goods on 15 April 2002 and they were not delivered to "R" until 27 May 2002. In other words, the goods were in [Buyer]'s possession for six weeks before they were re-dispatched. In that period of six weeks, [Buyer] had ample time to examine the goods.

Whether the buyer reasonably had the opportunity to examine the goods also depends on whether they were packed or not. If examination means breaking open the packaging which is necessary for transportation of the goods, or would have as a consequence that seals or proofs of authenticity would have to be removed, it is assumed that the buyer did not reasonably have an opportunity to examine the goods.

There is no evidence from which it can be deduced that the packaging necessary for transportation needed to be broken open, (according to [Buyer]'s order the shirts were to be packed in polybags. Nothing shows that these packages could not easily be opened and closed again). Nor has it been demonstrated that examination would have as a consequence that the seals or proofs of authenticity would have to be removed. [Buyer] therefore cannot rely on the provisions of art. 38(3) CISG.

This implies that the timeframe for examination of the goods commenced at the time of delivery, which was 15 April 2002. Furthermore, it has to be concluded that [Buyer], after receiving the goods, proceeded to examine the goods. After all, in his letter of 21 June 2002 [Buyer] states that immediately after receiving the goods he had informed [Seller] of certain defects.

[Buyer]'s proposition that he could not put the goods through further examination because they were packaged cannot be followed. Considering the defects that could have been determined on sight, [Buyer] should have performed further examination, despite the packaging present, if need be by means of spot checks (H. Van Houtte, J. Erauw and P. Wautelet, Het Weens Koopverdrag, Intersentia Rechtswetenschappen, 1997, p.168, nos. 5.34, 5.35 and 5.36).

      5. Based on the above it should be determined that [Buyer], shortly after the delivery of the goods on 15 April 2002, had discovered certain defects and should have discovered certain defects.

Art. 39(1) CISG puts an obligation on the buyer to protest within a reasonable time after the discovery of the non-conformity or after the non-conformity ought to have been discovered.

[Buyer] has violated the reasonable timeframe provided for by art. 39(1) CISG by protesting only after six weeks, determined from the time the defects were discovered and from the time at which the further defects should have been discovered (S. De Groot, Non-conformiteit volgens het Weens Koopverdrag, TPR, 1999, 691).

It should be noted that [Buyer]'s assertion that he had informed [Seller] of the defects shortly after the delivery (which [Seller] denies), is not proved in any way.

[Buyer]'s claim, in so far as it is based on the provisions of the CISG, should be dismissed.

      6. In subsidiary order, [Buyer] claims non-contractual liability of [Seller] as provided for by art. 1382 BW [Burgerlijk Wetboek (Belgian Civil Code)]. [Seller] does not defend itself against [Buyer]'s claim based on art. 1382 BW. Given the fact that [Buyer] bases its claim on art. 1382 BW and [Seller] does not retort, it can be concluded that parties agree with the fact that the claim based on tort should be assessed according to Belgian law. In other words, it can be concluded that parties have chosen for this the application of Belgian law.

A contracting party can, due to a mistake committed when performing the contract, only be held liable for a non-contractual obligation if the charged mistake is a breach, not of the contractual agreement, but of the general duty of care and if the mistake has caused a different damage than the one which can be attributed to the bad execution of the contract (Cass., 14 June 1971, Arr. Cass., 1971, 1989; Cass., 7 December 1973, Arr. Cass., 1974, 395).

As regarding this, [Buyer] does not prove that the mistake possibly committed by [Seller] is a different mistake than a breach of a contractual obligation and moreover that the mistake has caused damage that is different than the one that can be attributed to the bad execution of the contract. Consequently, [Buyer]'s claim, in as far as it is based on art. 1382 BW, should also be dismissed.

[...]

HOLDING

On these grounds, the Commercial Court, having heard the parties:

-   Declares [Buyer]'s claim admissible; however, declares the claim unfounded;
- Orders [Buyer] to pay [Seller]'s costs estimated at 342.09 Euro;

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the German Plaintiff is referred to as [Buyer]; the Belgian Defendant is referred to as [Seller].

** Yurishan Wilsoe, Master of International and European Law, student at Erasmus University, The Netherlands, Willem C. Vis International Commercial Moot participant 2003-2004.

*** Thalia Kruger, LL.B. Stellenbosch, South Africa, is Assistant of Private International Law, Katholieke Universiteit Leuven, where she is currently preparing a Doctoral thesis on International Jurisdiction.

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Pace Law School Institute of International Commercial Law - Last updated December 1, 2005
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