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CISG CASE PRESENTATION

Belgium 25 February 2004 District Court Hasselt (I v. NV P) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040225b2.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 04/601

CASE NAME: K BVBA v. BV

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Netherlands (plaintiff)

BUYER'S COUNTRY: Belgium (defendant)

GOODS INVOLVED: Unavailable


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 61 ; 74 ; 78

Classification of issues using UNCITRAL classification code numbers:

61C [Seller's remedies for breach by buyer: tribunal may not grant grace period];

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

78B [Rate of interest]

Descriptors: Grace period ; 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

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=990&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): CISG-Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/2004-02-25p.html>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=990&step=FullText>

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. 04/601]

Translation [*] by Evelien Visser [**]

Translation edited by Thalia Kruger [***]

Concerning:

<I, company incorporated according to Dutch law>, whose company seat is in (09351 VG) LEEK (Netherlands) ...; Plaintiff [Seller], represented by Mr. F. Pexsters and loco Mr. J. Andreux, advocaat in (1180) Ukkel ...;

against:

<NV P>, whose company seat is in (3530) Houthalen-Helchteren ...; Defendant [Buyer], represented by Mr. L. Favoreel, loco Mr. N. Tesseur, advocaat in (3500) Hasselt ...;

The judgment is as follows.

Through an introductory writ of 27 January 2004 by bailiff M. Princen, in the place of bailiff F. Jennen of Hasselt, Kermt, the Plaintiff [Seller] delivered the writ of summons to the Defendant [Buyer] with the purpose of having him ordered to pay Euro 34,301.46, to be increased with arrears interest from 1 February 2004 and judicial interest.

The amount of Euro 34.30146 is composed of the following elements:

-   invoices due . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Euro 30,266.00
- interest at 10.5% according to the Act of 2 August 2002 . . . . . . . . Euro   1,008.86
- compensation for damage according to the Act of 2 August 2002. . Euro   3,026.60
        Euro 34,301.46

At the hearing of 18 February 2004, Mr. F. Pexsters, loco Mr. J. Andreux, appeared to represent the [Seller]; on behalf of the [Buyer] Mr. L. Favoreel, loco Mr. N. Tesseur, appeared. Mr. L. Favoreel has not disputed the claim and requested to pay in installments over a period of six months; Mr. F. Pexsters granted this request.

DECISION

This case revolves around an international sale of goods.

Since the countries where the buyer and seller had their places of business at the time of the conclusion of the contract are Member States to the Vienna Sales Convention, the Belgian court must apply that Convention.

The Vienna Sales Convention addresses the issues of damages and interest charged on sums in arrears in articles 74 and 78 respectively, but does not determine the applicable interest rate.

The [Seller] can only invoke the Belgian Act of 2 August 2002 on arrears of payment in commercial transactions, and the provisions on damages and interest laid down therein to the extent that the Belgian Act is the lex contractus. This is apparently not the case here.

Furthermore, in that case the [Seller] would not be entitled to compensation for legal costs.

The claim of the [Seller] can be allowed, but on the basis of articles 74 and 78 of the Vienna Sales Convention.

Even though the buyer cannot be granted a period of grace when the seller resorts to a remedy for breach of contract according to article 61 of the Vienna Sales Convention, this case seems different, as the [Seller] agreed to a suspension of payment.

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 and full argument on both sides, the following judgment.

The court declares this judgment to have immediate effect without bail.

[...]


FOOTNOTES

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

** 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 January 20, 2005
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