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]

Case Table of Contents

• Case identification
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)

• Guide to links contained in case presentations

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

Editorial remarks

• Unavailable

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]

Queen Mary Case Translation Programme

Concerning:

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:

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 the claim of the [Seller] admissible and allowed.

• The court orders the [Buyer] to pay the [Seller] the amount of Euro 34,301.46 to be increased with judicial interest at 10.5% starting from 1 February 2004 on Euro 30,266.00 and the normal legal interest rate on Euro 3,026.60 until the day of payment.

• The court also directs the [Buyer] to compensate the [Seller] for the legal costs incurred, determined by the court at Euro 580.94 and not determined for the [Buyer] due to the lack of information provided to the court. These costs do not include the costs to be incurred in the event of enforcement of this judgment.

• The court allows the [Buyer] to pay in monthly installments of Euro 6,000.00 as of 1 March 2004.

• The court holds that in the event that an installment is not timely paid the entire amount can be claimed and enforced at once.

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.