Belgium 31 January 2005 Commercial Court Hasselt (BV Wolvega Panelen v. NV FAL) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/050131b1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: A.R. 98/02598
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Netherlands (plaintiff)
BUYER'S COUNTRY: Belgium (defendant)
GOODS INVOLVED: Fire proof panels for industrial complex
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
35A [Conformity of goods to contract: quality, quantity and description required by contract]; 38A [Buyer's obligation to examine goods: time for examining goods]; 74A [General rules for measuring damages: loss suffered as consequence of breach]; 77A [Obligation to take reasonable measures to mitigate damages]
35A [Conformity of goods to contract: quality, quantity and description required by contract];
38A [Buyer's obligation to examine goods: time for examining goods];
74A [General rules for measuring damages: loss suffered as consequence of breach];
77A [Obligation to take reasonable measures to mitigate damages]
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/2005-01-31%20Hasselt.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
31 January 2005 [A.R. 98/02598]
Translation [*] by Kristof Cox [**]
BV Mourik Bouw entrusted the construction of its new industrial complex in the Botlek Rotterdam to NV FAL [hereinafter the "Buyer"].
On 21 October 1997, the [Buyer] concluded an international sale of goods contract for fire- and sound-proofing sandwich panels with BV Wolvega Panelen [hereinafter the "Seller"].
This contract prescribed, inter alia, that the exterior panels would be produced in color RAL 9006, that the connection would be of type S, that more or less 1,200 m2 panels would be purchased, and that delivery would take place in week 03/1998.
The [Buyer] passed the assembly of these construction materials on to a subcontractor, BV Stamon Dak-en Gevelbeplating.
Contrary to what was determined in the contract, some of the conrock panels had differences in color on the exterior side. In reality, connections of type W(36) were delivered at the request of the [Buyer] and 1,473.42 m2 of goods were produced instead of more or less 1,200 m2. The goods were delivered on 17 February 1998, 20 February 1998, 24 February 1998, 10 March 1998, 16 March 1998 and 2 April 1998.
Now the [Seller] claims payment of:
[Buyer] counterclaims for damages for late and non-conforming delivery, in the amount of:
In memoranda, the [Buyer] stated that the CISG governs the agreement between the parties. At the hearing of 17 January 2005, counsel for the [Seller] agreed with the application of the CISG.
The obligations of the seller, among which the obligation to deliver the goods and the obligation of conforming delivery, are listed in the CISG in Articles 30 and following. According to the CISG, the buyer from his side has to accept the goods, to examine the goods after delivery and to pay the price. The question is whether both contracting parties have fulfilled their obligations in this case.
As to the obligation of payment by the [Buyer], the Court notes that the invoices made by the [Seller] as such have never been the object of any timely protest, let alone pertinent protest. Under these circumstances, the [Buyer] has to pay the unpaid invoices to the [Seller].
The sum of [...], however, cannot be raised with the claimed clause on damages and the conventional interest, since the conditions for delivery and payment of the [Seller] are not binding. Indeed, it cannot be expected of the [Buyer] that he would go to Leeuwarden to take notice of these conditions.
The main sum, however, can be raised with the legal interest starting from the moment the price was due. The CISG does not require prior notice.
Considering this, the Court holds that [Seller]'s main claim is acceptable and partially founded.
About the duty of delivery of the [Seller] within the agreed terms, the Court finds that the [Seller] recognized in its fax of 4 February 1998 that it could not deliver the first sandwich panels on time due to problems in the production with [Seller]'s new profiling machine.
The [Buyer] alleges that it therefore had to keep its mechanics at least a week on stand-by and for this delay is entitled to 7,000 NLG. The Court does not share this vision.
Firstly, the [Buyer] put out the assembly of the panels to BV Stamon Dak-en Gevelbeplating.
Secondly, the [Buyer] did not prove that it could not employ its personnel elsewhere.
Further, the [Seller] admitted in its fax of 13 February 1998 that there had been a delay, however, it said that this delay was caused by a lack of approval of the definite measures and a change of the connection type S in Type W36 and later on by supplementary orders. All these factors were never rebutted by the [Buyer].
Thus, no penalty or damages for late delivery are due.
Finally, we have to decide on the conformity of the deliveries and more precisely on the differences in color of the exterior plates.
Firstly, the Court finds that the plates and pallets were transported and the inspection by the [Buyer] could only take place on the construction site. However, the Court doubts whether the [Buyer] performed the necessary sample inspections, since the complaints were apparently only expressed after the assembly.
In any event, it is certain that the sandwich panels were of proper quality and fit for different weather conditions.
Further, the Court can only conclude that as to the color, only RAM 9006 was stipulated, which was indeed delivered.
It does not show from the documents presented that the [Seller] would have guaranteed that all plates would be manufactured from one and the same coil and that this was critical for the [Buyer].
Neither does the [Buyer] prove sufficiently that the differences in shade were unacceptable and outside the normal limits of tolerance. This is not contradicted by the fact that the [Seller] was willing to replace part of the panels for commercial reasons (see fax of 3 March 1998). The same goes for the fact that BV Mourik Bouw refused the plates of the façade.
Finally. and in as far as necessary, the Court stresses that the [Buyer] did not prove in any away that it paid any damages to BV Mourik Bouw and BV Stamon Dak- en Gevelbeplating.
The Court does not find any proof of payment in the evidence provided by the [Buyer].
Finally, the Court is of the opinion that an evidentiary measure would no longer be helpful considering the external factors that have occurred since the installation (UV-rays, ...) and the disassembly and assembly of some sandwich panels.
Helpful findings are no longer possible.
The [Buyer] should have summoned the [Seller] immediately in summary proceedings in order to have certainty about the over range of the limits of tolerance, which it did not.
The [Buyer]'s counterclaim is rejected.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Netherlands is referred to as the [Seller] and Defendant of Belgium as the [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 casenotes on the CISG and International Commercial Arbitration. Kristof Cox can be contacted at <Kristof.email@example.com>.Go to Case Table of Contents