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CISG CASE PRESENTATION

Belgium 25 February 2004 District Court Hasselt (K BVBA v. BV) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040225b1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20040225 (25 February 2004)

JURISDICTION: Belgium

TRIBUNAL: Rechtbank van Koophandel [District Court] Hasselt

JUDGE(S): P. Vanhelmont, L. Claes, H. Eraly

CASE NUMBER/DOCKET NUMBER: AR 04/79

CASE NAME: K BVBA v. BV

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Belgium (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Carpet


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 74 ; 78

Classification of issues using UNCITRAL classification code numbers:

74A [General rules for measuring damages: loss suffered as consequence of breach];

78B [Rate of interest]

Descriptors: Damages ; Legal costs ; Interest

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO 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/2004-02-25w.html>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: 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

Rechtbank van Koophandel Hasselt

25 February 2004 [A.R. 04/79]

Translation [*] by Evelien Visser [**]

Translation edited by Thalia Kruger [***]

Concerning:

<K BVBA.>, whose company seat is in (3990) PEER ...; Plaintiff [Seller], represented by mr. A. Stevens, advocaat in (3500) Hasselt ...;

against:

<I BV>, company incorporated according to Dutch law, whose company seat is in (5595 AS) LEENDE (Netherlands) ...; Defendant [Buyer], who did not appear at the hearings of 18 February 2004 and against whom a default judgment is requested.

The judgment is as follows.

Through an introductory writ of 9 December 2003 by bailiff B. Heines of Hasselt, the Plaintiff [Seller] summoned the Defendant [Buyer] with the purpose of:

-   Having him ordered to pay Euro 326,855.83, to be increased with interest at 10.5% annually from the date of the invoices until 30 June 2003, and to be increased with interest at 9.5% from 1 July 2003 until the day of the writ of summons;
- Having him ordered to pay Euro 26,762.93 to be increased with judicial interest at 9.5% annually from the expiry date of the invoice until the date of the writ of summons;
- Having him ordered to pay the judicial interest at 9.5% as provided by the Act of 2 August 2002; and
- Having him ordered to pay for all legal costs incurred by the [Seller] at Euro 2,500.00.

The amounts of Euro 326,855.83 and Euro 26,762.93 are, according to the summons, composed in the following manner:

At the hearing of 18 February 2004, Mr. A. Stevens appeared to represent the [Seller]; the [Buyer] did not appear, nor was he represented. Mr. A. Stevens requested an in absentia judgment; the court has granted this request.

FACTS

The claim relates to the unpaid purchase price emerging from a sale of unfinished roles of carpet between a Belgian seller and a Dutch buyer. The [Seller] holds that the parties had not agreed on a place of delivery, and that, therefore, the main rule laid down in article 5(1) of the Brussels I Regulation [*] applies. The contractual obligation which forms the basis of the dispute concerns a claim for payment. According to article 57 CISG, the buyer must pay the purchase price at the place of business of the seller, thus Belgium. Moreover, it has been provided in the contract that payment should take place on a Belgian bank account. In the event that the court would decide that a place of delivery had been agreed upon, the documents provided show that the goods were collected from the seller's place of business by a transport company appointed by the buyer and were accordingly delivered to company BVBA B whose company seat is in Tiegem, Belgium. Hence, Belgian courts would have jurisdiction according to article 5(1)(b) of the Treaty of Brussels I Regulation.

The [Seller] invokes in relation to his claim of interest in arrears and legal costs incurred, the Act of 2 August 2002 specifically addressing arrears of payment in commercial transactions.

DECISION

Before answering the question of internal jurisdiction, the court needs to address the issue of international jurisdiction by taking into consideration the issue at hand, the capacity of the parties involved, and the location of the place of the dispute. (See Born H., Fallon M. and Van Boxstael J.-L., Droit judiciaire international, Chronique de jurisprudence, 1991-98, Larcier, Brussel, 2001, p. 54).

Since 1 March 2002, the Brussels I Regulation applies since the [Buyer] is domiciled in the Netherlands, where the Regulation also applies. According to article 26(1) of the Regulation, the court has to declare having no jurisdiction where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance if its jurisduction is not based on one of the provisions of the Regulation.

The [Seller] does not invoke an agreement as to international jurisdiction, but relies on the fact that the obligation in this dispute has to be performed in Belgium.

The Regulation amended article 5.1 of the Brussels Convention [*]. This article now reads:

"A person domiciled in a Member State may, in another Member State be sued: 1a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: - in case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered ..."

This entails that for all obligations relating to a sale, the court of the actual place of delivery has jurisdiction.

It does not seem correct that the parties had not agreed on a place of delivery, as the goods were taken from the [Buyer] in Belgium, which implies that they had agreed on delivery "at factory". Therefore, the Belgian courts have jurisdiction for the claim for payment.

Moreover, the [Buyer] was summoned in accordance with the Service Regulation [*] as the bailiff J.D. Kuik of Eindhoven handed the [Buyer] the writ of summons on 12 December 2003 in order for the claim to be admissible (the writ has been delivered to the [Buyer] in person and timely in order to give him the opportunity to defend himself).

It can be assumed that the applicable law is the Vienna Sales Convention as the buyer and the seller both have their place of business in Member States to the Convention.

Articles 74 and 78 of the Vienna Sales Convention provide for the principle of damages and interest charged on sums in arrears without determining the applicable interest rate. In this regard, the [Seller] can rely on the lex contractus. The [Seller] was to perform the most characteristic performance and the parties have not agreed on the applicable law. One can therefore assume that the applicable law is Belgian law, which implies that the [Seller] justly invokes the Act of 2 August 2002, specifically addressing arrears of payment in commercial transactions.

Nevertheless, the [Seller] unjustly claims on the basis of this Act interest at 10.5% on the amounts of the invoices which were issued during the first half of 2003, as the interest rate is set to be 10% for that period according to article 5(2) of the Act of 2 August 2003 (B.S., 14 February 2003). The debates are reopened to allow the [Seller] to calculate the total amount of interest on the sums in arrears.

Futhermore, the [Seller] unjustly claims compensation for legal costs since when compensation in the sense of article 6(1) is granted, no compensation for legal costs can be granted.

The provisions of articles 2-30 to 37 of the Act of 15 June 1935 concerning the use of language in legal proceedings were adhered to.

FOR THESE REASONS,

The court holds, after deliberations, by default that the claim is admissible and partially allowed.

[...]


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] and the Defendant of Netherlands is referred to as [Buyer].

Translator's note on Convention and Regulations cited:

     -      The Brussels Convention: Brussels Convention on Jurisdiction and the Enforcement of Judments in Civil and Commercial Matters (1968). Official Journal C 27 of 26 January 1998, 1-27 (Consolidated version).
 
     -      The Brussels I Regulation: Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. Official Journal L 12 of 16 January 2001, 1-23.
 
     -      The Service Regulation: Council Regulation (EC) No. 1348/2000 of 29 May 2000 on the Service in the Member States of Judicial and Extra-Judicial Documents in Civil or Commercial Matters. Official Journal L. 160 L160 of 30 June 2000, 37-52.

** Meester in Nederlands Recht, Tilburg University, The Netherlands (1997); Master of Laws, University of Georgia, USA (1998); Doctor of Philosophy, University of Oxford, United Kingdom (2003), Advocaat with Houthoff Buruma <http://www.houthoff.com> London, United Kingdom.

*** Thalia Kruger, assistant of Private International Law, Katholieke Universiteit Leuven, where she is currently preparing a doctoral thesis on international jurisdiction, LL.B. Stellenbosch, South Africa.

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Pace Law School Institute of International Commercial Law - Last updated November 22, 2004
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