Belgium 11 October 2004 Appellate Court Ghent (NV Frans Bijttebier-Bouckaert v. BV Nooteboom International) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/041011b1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 2003/AR/2603
CASE HISTORY: 1st instance Rechtbank van Koophandel Veurne 28 May 2003
SELLER'S COUNTRY: Belgium (plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: Clothing
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
9C [Practices established by the parties]; 72B [Avoidance prior to date for performance: advance notice of intent to avoid]
9C [Practices established by the parties];
72B [Avoidance prior to date for performance: advance notice of intent to avoid]
Overview comments (CISG-Belgium database): "Application of CISG -- Belgium and Netherlands Contracting States. Jurisdiction -- forum clause on general conditions -- usage between parties -- valid -- Belgian court has jurisdiction. Applicable law -- European Contracts Convention (1980) -- residence of seller -- Belgium -- Belgian law applicable for filling of gaps. Late delivery -- even if extra period permitted, buyer retains right to damages. Duty to give notice of non-conformity -- otherwise buyer loses right to damages. Seller cancelled part of contract -- buyer entitled to damages. Interest -- Belgian rate."Go to Case Table of Contents
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Dutch): CISG-Belgium database <http://www.law.kuleuven.ac.be/ipr/eng/cases/2004-10-11.html>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
11 October 2004 [2003/AR/2603]
Translation [*] by Kristof Cox [**]
1. Data on the case on appeal
On 25 November 2003 [Seller] filed an appeal against the judgment of 28 May 2003 of the Commercial Court of Veurne [Court of First Instance]. [Buyer], in turn, primarily seeks a confirmation of the judgment.
The dispute concerns the following issues:
|-||Jurisdiction. The jurisdiction of the Belgian judge to rule on the claims of [Seller], who claims (1) payment of an invoice of 35,506.70 €, plus interest at 12% and fixed damages at 10% with a maximum of 1,860 € for the delivery of several textile items over the period August to October 2001 and (2) payment of damages in the amount of 21,219.69 € plus interest, for the annulment by [Buyer] of the order for the Spring of 2002.
|[Seller] of Belgium invokes against [Buyer] of the Netherlands its forum selection clause, mentioned in the general conditions on the [Seller]'s invoice.
|-||Applicable law. The law applicable to the relation between the parties (Belgian seller
and Dutch buyer).
|-||Validity of claims. The validity of the counterclaim that [Buyer] filed in secondary order in the event the main claim of [Seller] would be declared valid. The [Buyer]'s counterclaim is for payment of damages claimed in the invoice of 24 October 2001 in the amount of 14,355.04 € plus interest at 10% and fixed damages for alleged late and faulty deliveries by [Seller].|
The Court of First Instance declared that it did not have jurisdiction for the following reasons:
1. The Belgian judge has jurisdiction:
Besides the explicit notice in a language known by both parties in the subsequent invoices under which the parties have continued their business relationship -- it is not required in (international) trade for the conditions on the invoice to be binding that the contracting party refers again explicitly to the general conditions on the invoice in the course of the business relationship, for example, in a confirmation of order, a letter attached to the sending of the invoice or in a reminder, or that the party has used these before in a prior action.
(International) trade requires the existence of standard conditions that make the agreements between the parties more concrete (see i.a. I. Couwenberg, Algemene voorwaarden in internationale overeenkomsten, TPR 1993, p. 200, nr. 1; K. Broeckx, Recente ontwikkelingen inzake het Europees Bevoegdheids- en Executieverdrag, CBR Jaarboek 1997-98, Maklu 1998, 41). Thus, it is generally customary in trade to agree and arrange more explicitly on the payment and -- for the case of late payment -- on the collection of the invoice and the consequences of late payment, in general conditions on the invoice. It is the other contracting party's task to protest against the general conditions on the invoice "on payment and collection" if it does not want to continue the business relationship under the conditions that were made known.
1.2 [Buyer], a wholesaler, had a regular business relationship with [Seller] since 2000, which is proven by [Seller] by presenting twenty-five invoices which it sent to [Buyer] during the period 22 September 2000 to 24 July 2001.
In the course of the business relationship, [Buyer] has not contested these general conditions "on payment and collection" on the invoices. Thus, the Court concludes that [Buyer] agreed with the forum selection clause, which grants jurisdiction to the Belgian judge for the collection of the invoices that are left unpaid (see i.a. H. Van Houtte, Uitsluitende bevoegdheidsgronden, Europese IPR-Verdragen, Acco 1977, p. 55, no. 2.21; I. Couwenbergh, Commentaar bij artikel 17 EEX-verdrag, in Artikelsgewijze commentaar gerechtelijk recht, uitgaven 2000, 136; F. Van Neck, Spanning tussen proceseconomie en partijautonomie: de voorrang van artikel 17 op artikel 6 EEX-verdrag, A.J.T. 2001-2002, 589; I. Couwenbergh, M. Pertegas Sender, Recente ontwikkelingen in het Europees bevoegdheids- en executierecht, Het nieuwe Europese IPR van verdrag naar verordening, Intersentia 2001, p. 35, nr. 2.21; Court of Justice, 16 March 1999, C-159/97, Transporti Castelletti Sepdizioni Internazionali S.p.A. and Hugo Trumpy S.p.A.).
2.2 On the basis of Article 1(1)(a) of the CISG, the relation between the parties is governed by the CISG; The Convention entered into force in the Netherlands on 1 January 1992 and in Belgium on 1 November 1997.
In case there is a gap in the Convention, the judge must primarily settle the dispute in conformity with the general principles on which the Convention is based; only in the absence of such principles the judge will rely on the law applicable by virtue of the rules of private international law.
The European Contracts Convention of 19 June 1980 (ECC) provides the applicable rules of private international law, since the ECC is applicable in Belgium since 1 April 1991 and in the Netherlands since 1 September 1991. By application of Article 4 of the ECC, the judge will in final instance make use of the Belgian law. The parties agree that the characteristic performance in this case is the delivery of goods (see i.a. point 2.2 of the memoranda of [Buyer]), so that the contract is governed by the law of the seller's country, who had to perform the characteristic performance.
2.3 In the opinion of the Court, [Seller]'s claim on the basis of the invoice is founded in the following degree:
2.3.1 The exhibits presented by [Seller] prove that it also delivered the goods listed on the invoice to [Buyer].
For the invoices it claims, [Seller] also presents a shipping note, and as to the quantity of goods on the invoice -- which every invoice specifically mentions -- [Buyer] has not protested in a timely manner.
2.3.2 The exhibits presented by [Seller] also prove the open way of communication between the parties for the transaction of orders, which gave rise to the invoices claimed here, and this for both the determining and meeting of practicable delivery dates, as for the annulment and replacement of current orders.
Each time [Seller] gave notice to [Buyer] if the delivery date suggested by [Buyer] could not be met for reasons that could not be unequivocally attributed to [Seller].
This notice allowed [Buyer] to either (1) annul several orders, or (2) provide an extension of the time for delivery, or (3) leave the further determination of the delivery to [Seller].
[Buyer] has accepted all deliveries without reservation, which [Seller] performed according to these notices and within the open communication between the parties for the transaction of the orders.
2.3.3 [Seller] provides evidence that it repeatedly sent formal notices to [Buyer] from 24 July 2001 on for non-payment of its invoices: on 24 July 2001, 10 August 2001 and 21 August 2001 for the invoices with due dates from 23 February till 10 May 2001; on 20 September 2001 for the invoices with due dates from 23 February till 4 September 2001; on 17 October 2001 for the invoices with due dates 4 May till 10 October 2001; on 7 November 2001 for the invoices with due dates 28 September 2001 till 2 November 2001.
Therefore, the Court declares that the [Seller]'s claim for damages at 10% with a maximum of 1,860 € is founded. The Court also grants interest on the main sum of 35,508 € at the interest rate of the Statute of 2 August 2002 for combat against arrears of payment in business transactions (the interest rate that the Central European Bank applies for its most recent basic refinancing transaction, plus seven percent points and rounded to the higher half percent point). This interest rate is [...]
2.4 The counterclaim of [Buyer] for the deliveries that [Seller] has not performed is not adequately supported:
2.4.1 To the degree that the parties agreed on a binding date for delivery at the moment of the order, [Buyer] is entitled to damages. According to Article 47(2) CISG, the buyer who has fixed an additional period of time of reasonable length is not deprived thereby of any right he may have to claim damages for delay in performance.
[Buyer], however, does not provide any proof of damage. The goods for the winter collection 2001/2002 -- which are the object of the dispute -- were delivered from 14 August to 12 October 2001. [Buyer] does not present any complaint of its own customers and does not prove that it has not been able to sell the collection at its usual selling price during the winter season 2001/2002.
2.4.2 [Buyer] does not prove the defects it invokes. [Buyer] failed to examine the goods that were delivered from 14 August to 12 October 2001 and for which it invokes defects in its registered mail of 8 November 2001, for which it sent an invoice for alleged damage on 24 October 2001, or cause them to be examined within a reasonable time and to give notice of the visible defects specifying the nature of the lack of conformity (Articles 38 and 39 CISG).
2.5 The claim of [Seller] for payment of damages for the unjustified annulment of the spring collection 2002 by [Buyer] is partially founded:
It follows from the reasoning as stated that the Court -- within the open communication that existed between the parties for the transaction of orders -- did not find serious breaches by [Seller] for the delivery of winter season 2001/2002. Moreover, [Buyer] ordered from [Seller] on 5 October 2001 10,600 shirts for the spring collection of 2002 at a time when [Seller] had almost completely delivered the order for the winter season and knew how the orders of the previous season were handled between the parties.
The Court decides that [Buyer] has unilaterally annulled its order without warning [Seller] in advance that it could no longer agree with the customary manner of handling the orders between the parties (see Article 72(2) CISG).
The Court estimates the damage of [Seller], taking into account the obligation to mitigate damages on the basis of Article 77 CISG, at 1 € per shirt or 10,600 €, plus judicial interest at the Belgian legal interest rate from the date of the service of writ.
FOR THOSE REASONS,
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellant of Belgium is referred to as [Seller] and Defendant-Appellee of Netherlands is referred to as [Buyer].
** Kristof Cox is a researcher at the Institute for International Trade Law at the Catholic University of Leuven (Belgium). He is preparing a Ph.D. on the effects of an arbitration award on third parties. Further, he regularly publishes articles and case notes on the CISG and International Commercial Arbitration. Kristof Cox can be contacted at <Kristof.firstname.lastname@example.org>.Go to Case Table of Contents