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CISG CASE PRESENTATION

Belgium 15 February 2006 Commercial Court Hasselt (Bruggen Deuren BVBA v. Top Deuren VOF) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060215b1.html]

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

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Case identification

DATE OF DECISION: 20060215 (15 February 2006)

JURISDICTION: Belgium

TRIBUNAL: Rechtbank van Koophandel [Commercial Court] Hasselt

JUDGE(S): Vanhelmont, Vanstraelen and Nulens

CASE NUMBER/DOCKET NUMBER: A.R. 05/4177

CASE NAME: Bruggen Deuren BVBA v. Top Deuren VOF

CASE HISTORY: 2d instance Rechtbank van Koophandel Hasselt 19 April 2006

SELLER'S COUNTRY: Belgium (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Doors


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 6

Classification of issues using UNCITRAL classification code numbers:

6B [Agreements to apply Convention (choice of law): choosing Belgian law does not prevent the applicability of the CISG since the CISG is the Belgian law on the international sale of goods]

Descriptors: Choice of law

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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 <http://www.law.kuleuven.ac.be/ipr/eng/cases/2006-02-15%20Hasselt.html>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Rechtbank van Koophandel [Commercial Court] Hasselt
Bruggen Deuren BVBA v. Top Deuren VOF

15 February 2006 [A.R. 05/4177]

Translation [*] by Kristof Cox [**]

[...]

FACTS

The parties had an ongoing business relationship, in which Defendant, Top Deuren [Buyer], frequently purchased doors from Plaintiff, Bruggen Deuren BVBA [Seller].

Invoices were exchanged on which the general conditions provided for the exclusive application of Belgian law and the exclusive jurisdiction of the Courts of the District of Hasselt.

On 6 July 2005, [Buyer] ordered thirty-two doors of specified sizes and slats in "Tulip blanc permanent untreated" according to a an offer of 27 May 2005. [Buyer] indicated that it was not familiar with the type of wood "Tulip" and therefore asked for a sample of this type of wood. The order mentions "Commission Greefhorst".

The sample that was shown at the hearing and of which a clear picture was deposed in evidence, does not show differences in colors and, according to [Buyer], it was the intention of its customer (apparently a customer of Greefhorst) to leave the doors untreated and not to cover them with paint or varnish which would have made the structure of the wood invisible. This is what [Buyer] wanted to indicate by mentioning "blanc permanent untreated". A card presented by [Seller] about Tulip wood (parties agree that this card was never presented to [Buyer]) states: "because this pale kind of wood presents differences in colors, it can normally not be used as such, but it has to be colored". [Buyer] presented a brochure of [Seller], which gives information about the quality and prices of the doors manufactured by [Seller]. For each kind of wood it is indicated how that kind looks and, in particular, whether differences in colors are possible. Remarkably, Tulip is not mentioned among the qualities, however, it is mentioned in the price section.

On 1 September 2005, [Seller] sent an invoice for 7,016.00 []. The claim for payment of this invoice is the object of the [Seller]'s main claim. The wood of the doors presented important differences in colors: this is not discussed and it shows from the pictures presented by [Buyer].

Apparently, [Buyer] protested because [Buyer] and its customer had not expected doors with differences in colors. On 14 September 2005, [Seller] answered the protest, stating: "Tulip is a kind of wood with many differences in colors. No two pieces have the same color. For this reason, the wood cannot be sorted out. If you had mentioned in the order that the color of the wood had to be uniform, we would have suggested another kind of wood (Koto). It says 'blanc untreated' but not TRANSPARENT treated. Tulip is indeed not fit for transparent treatment, although it is possible. It is fit for blanc primer or paint."

On 15 September 2005, [Buyer] e-mailed to [Seller]: "As discussed with you yesterday, the delivered doors in Tulip wood are not acceptable for us. We clearly ordered doors that had to be delivered 'blanc untreated'. Before the order. we have especially ordered samples from you, and we have examined these because of the color of the wood. Next week (this is week 38) the construction of the customer has to be surrendered. How do you think you will deal with this? Please an urgent reaction."

On 15 September 2005, [Seller] answered:

"As you mention, you have ordered the doors 'blanc permanent untreated'. We have delivered the doors blanc permanent untreated. Thus, we have delivered them as you had ordered. From your telephone message today it seems that you did not want differences in colors in the wood. This could not be read in your order. Moreover, we do not know the preferences of your customer. One person likes differences in colors, the other likes uniform. If you did not want differences in color in the wood, you should have mentioned this on the order, then we would have suggested another kind of wood anyway. You have examined the samples on color, but a sample of 10x20 cm of course does not give the full picture. At your simple request we could have provided you with the specifications of this kind of would (Tulip). By the way, you can find these on the internet."

Apparently, from then on [Seller] refused to honor every order by [Buyer], as is shown by e-mails of 22 September 2005 and 13 October 2005: "We would like to come to a solution first for ref. Greefhorst. Then we will put all orders on hold."

On 23 September 2005, [Buyer] answered the [Seller]'s e-mail of 15 September 2005:

"As a reaction to your e-mail, what follows. As discussed before, we have indicated that we have correctly ordered the doors produced in Tulip-wood "Blanc permanent untreated". In our view, the fault is entirely on your side. We have indicated not to be prepared to bear the costs. In relation to the agreed delivery date, we have in the meantime also received a claim from our customer about the finishing of the doors that still are to be delivered. If we would not be able to come to an agreement, we will pass on the costs to you. Be aware, we still have orders for several doors and we expect that these will be delivered in a correct manner. Further, we have several requests here for doors in special editions and also already requested from you. Our question ...will we continue our relationship in a good way, or do we empty our showroom and pull out the plug??? Please a reaction asap."

On 26 September 2005, Greefhorst, the customer of [Buyer], ordered the same thirty-two doors directly from [Seller], but this time in white American oak. [Seller] accepted this order.

POINT OF VIEW OF THE [SELLER] ON THE [SELLER]'S MAIN CLAIM

The jurisdiction of the court is not disputed.

Having regard at the binding condition in the invoice conditions, Belgian law is applicable. Parties are allowed to deviate from the CISG.

[Buyer] has never mentioned anything about the destination or the finishing of the doors, nor about the preferences of its customer, but placed the order with knowledge, after it had the opportunity to look at the samples and could ask supplementary information about the kind of wood. [Seller] could not possibly read from the order of [Buyer] that it did not want differences in colors; if so, [Buyer] should have mentioned 'transparent treated' or 'uniform'. In that case, [Seller] would have suggested another kind of wood. As the biggest specialist shop for doors in the Netherlands, [Buyer] should have been aware of this and, if it was not familiar with the kind of wood, it should have looked for the necessary specifications, or asked supplementary information.

POINT OF VIEW OF THE [BUYER] ON THE [SELLER]'S MAIN CLAIM

The fact that [Buyer] is a professional company that exclusively buys and sells doors does not necessarily lead to the conclusion that it acted with knowledge. This is shown by the fact that it ordered a sample. If [Buyer] knew the kind of wood it would not have requested a sample. [Buyer] was not supposed to suspect that a bigger sample would lead to another conclusion about the differences in colors. When [Buyer] placed other orders of which it did know the kind of wood, it did not request a sample. If Tulip is a kind of wood with many differences in colors, it amazes [Buyer] that this is not mentioned in the brochure, while there is a specific warning about this for other kinds of wood. If [Buyer] orders doors 'blanc permanent untreated', [Seller] should have known immediately that it was not the intention of [Buyer] to treat them transparently. The request for a sample shows that [Buyer] considered the color to be of special importance. If [Buyer] wanted to paint or prime the doors, the color would have been irrelevant. [Seller] should have contacted [Buyer] with the question if the delivery of a color that differs from the sample would be a fundamental problem.

POINT OF VIEW OF THE [BUYER], CLAIMANT ON COUNTERCLAIM, ON THE COUNTERCLAIM

The delivery of new doors directly to the customer of [Buyer] deprived [Buyer] of business and profit. Another order, worth 8,000 was delivered by [Seller] without the knowledge of the [Buyer], directly to the customer and recalculated, so that [Buyer] was again deprived of business and profits. There was another order for Wengé-doors and these were not delivered so that [Buyer] had a big problem with its customer. Seen all this, [Buyer] has suffered a loss of 10,000 and it wants to be indemnified by [Seller]. As a result, the doors in the showroom have also become worthless after being in the showroom for only a year; this is a cost of +/- 3,000.00.

POINT OF VIEW OF THE [SELLER], DEFENDANT ON THE [BUYER]'S COUNTERCLAIM, ON THE [BUYER]'S COUNTERCLAIM

The damages have not been proven. [Seller] has only delivered directly to Greefhorst, a company with which [Buyer] shares its purchases to get better prices. What was delivered by [Seller] to Greefhorst, was ordered by the latter. It is allowed to refuse a sale, if invoices are no longer paid. This has been agreed on in the invoice conditions. This is not an abuse of right. There is no reason why the doors in the showroom would have become worthless.

EVALUATION

[...]

Unlike the opinion of [Seller], the Court is of the opinion that the CISG is applicable. Under article 1(1), the Convention is applicable to contracts for sale of movable goods between parties whose places of business are in different Contracting States. This is the case since Belgium and the Netherlands are parties to the Convention. Under article 3(1) of the CISG, contracts for the delivery of goods to be manufactured or produced are to be considered sales, unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production. Thus, the contracts between the parties are in principle governed by the CISG. The fact that the general conditions of [Seller] indicate that Belgian law is applicable, does not contradict this decision, since the Belgian law for the international sale of goods is the CISG (Commercial Court Hasselt, 14 September2005, unpublished, Drukkerij Baillien and Mans NV/ Hunterskil Howard BV; Cox K., "De invloed van een rechtskeuze op de toepassing van het Weens Koopverdrag", disapproving case note under Commercial Court Brussels, 24 March 2004, T.B.H. 2005, 782, that came to another solution, and the references made there).

Since the [Seller] grounds its point of view on Belgian law, it is appropriate to re-open the debates either to allow the parties to ground their defense on the CISG, or to both agree that Belgian internal law should be applied.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff Bruggen Deuren BVBA of Belgium is referred to as [Seller] and Defendant Top Deuren VOF of The 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 casenotes on the CISG and International Commercial Arbitration. Kristof Cox can be contacted at <kristof.cox@law.kuleuven.be>.

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Pace Law School Institute of International Commercial Law - Last updated September 29, 2006
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