Belgium 19 April 2006 Commercial Court Hasselt (Brugen Deuren BVBA v. Top Deuren VOF) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060419b1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: A.R. 05/4177
CASE HISTORY: 1st instance Rechtbank van Koophandel Hasselt 15 February 2006 (jurisdiction and governing law issues)
SELLER'S COUNTRY: Belgium (plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: Doors
Reproduced from CISG-Belgium database
"Unlike 'national' Belgian law, the CISG provides only one remedy for the buyer in case of non-conformity. The system of the CISG would be disturbed if the buyer could claim the invalidity of the contract on grounds of error.
"The buyer must prove that the delivered goods are non-conforming to the contract.
"The fact that the buyer is a specialist is taken into account."Go to Case Table of Contents
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
4A [Scope of Convention (issues covered): mistake as to substantive quality of goods]; 35B ; 35B3 [Conformity of goods to contract (requirements implied by law): fitness for purpose; Qualtiy of goods held out as sample or model]
4A [Scope of Convention (issues covered): mistake as to substantive quality of goods];
35B ; 35B3 [Conformity of goods to contract (requirements implied by law): fitness for purpose; Qualtiy of goods held out as sample or model]
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/2006-04-19%20Hasselt.html>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
French: Claude Witz, Recueil Dalloz (22 February 2007) 533Go to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
19 April 2006 [A.R. 05/4177]
Translation [*] by Kristof Cox [**]
The court refers to the interlocutory judgment for the facts. [See Hasselt 15 February 2006 <http://law.kuleuven.be/ipr/eng/cases/2006-02-15%20Hasselt.html>; English translation available at <http://cisgw3.law.pace.edu/cases/060215b1.html>.]
Plaintiff [Seller] alleges that it is not correct to say that [Seller]'s brochure provides a description for every kind of wood, what the quality looks like and whether differences in colors are possible, except for Tulipwood. Particularly, [Seller]'s brochure does not do this (either) for the other kinds of wood: Koto, Yellow Pine, Grenen BIS and Red Alter. [Seller] repeats that the description of Tulipwood is easy to find on the Internet and that differences in color are characteristic for Tulipwood. There certainly were no differences in color on every door and the degrees of the differences in color cannot be considered abnormal. Some clients like differences in color in this kind of wood, while others like the wood uniform. According to [Seller], Defendant [Buyer] acted with knowledge and knew the kind of wood, Tulipwood, with its characteristics or ought to know it or to inform itself better.
On 24 February 2006, [Buyer] filed a written memorandum in which it relies on the CISG, in particular article 35(2)(c). [Seller] agrees that the CISG is applicable.
As to the application of article 35(2) CISG, [Seller] poses that it was impossible for [Seller] to deduce from the [Buyer]'s order that [Buyer] did not want differences in color: it was perfectly possible to leave the doors without treatment.
[Seller] contends that:
"... the seller is obliged to deliver goods that conform completely with the description that the parties have given explicitly or implicitly in the agreement. If nothing is determined explicitly, the goods conform to the contract if they are fit for the purposes for which goods of the same description are generally used." (Antwerp, 16 December 2002, 2001/AR/1737, <http://www.law.kuleuven.be/ipr/eng/cases/2002-12-16.html>).
And [Seller] contends that it has fulfilled its duty of informing:
"... the duty of informing vis-à-vis a specialist in the field is of course much less stringent as the duty of informing vis-à-vis a layman ..., ... it was the duty of the buyer to search for technical information and this according to the concrete information that was given to him about the application ..." (Ghent 4 October 2004, 2003/AR/2763, <http://www.law.kuleuven.be/ipr/eng/cases/2004-10-04.html>).
Finally [Seller] contends that the sample it provided had the same characteristics as the kind of wood ordered by [Buyer] and that was delivered by [Seller]. In any event [Buyer] has not proved that the alleged breach was fundamental. According to Art. 25 CISG, a breach is fundamental if it leads to such detriment to the other party that it is significantly deprived of what it could expect from the agreement, which is not the case. [Buyer] does not even present the complaints of its customer. [Seller] also invokes Art. 35 CISG.
The parties agree that the CISG is applicable.
In internal Belgian law, a lack of conformity of the goods can be sanctioned on different grounds. The buyer can file a claim for nullity based on error or mistake, or a claim based on tort for the violation of the seller of its pre-contractual duty of information, or a claim to avoid the contract, or a contractual claim for breach of the duty of delivery, or the actio redhibitoria or estimatoria provided by Art. 1644 Civil Code. The CISG only provides one remedy for the buyer in case of non-conformity of the delivered goods (Herbots, J., "Verplichtingen van de verkoper" in Van Houtte H., Erauw J. en Wautelet (eds.), Het Weens Koopverdrag, Intersentia, 1997, p. 119 no. 4.31).
In its letter after the interim judgment, [Buyer] states that it relies on Art. 35(2)(c) CISG. [Buyer] does not claim the nullity of the agreement because of error or mistake. According to Art. 4(a) of the CISG, the nullity should be decided according to the lex contractus. Moreover, certain authors state that the system of the Convention would be disturbed if the buyer could claim the nullity of the contract based on error or mistake about the substantial quality of the goods (Herbots, J., "Verplichtingen van de verkoper" in Van Houtte H., Erauw J. en Wautelet (eds.), Het Weens Koopverdrag, Intersentia, 1997, p. 121 nr 4.33 and Wautelet P., "Verplichtingen van de koper" in the same work, p. 185, no. 5.66).
The delivered goods are fit to be used as doors (Art. 35(2)(a) CISG).
The delivered goods are fit for the special purpose which was explicitly or implicitly made known to the seller at the moment of the sale. The seller relies on the axiom that doors in this kind of wood, Tulipwood, are not fit as "blank permanently untreated". [Seller] wrote in a filing card (that was never handed over to [Buyer]) that the doors of Tulipwood 'normally' are not used as such, but have to be colored. However, [Buyer] did not disagree with [Seller] when the latter posed on 15 September 2005 "Thus we have delivered them as you have ordered. From your telephone message of today it appears that you did not want differences in color in the wood. Unfortunately, this cannot be derived from your order. Moreover, we do not know the preference of your customer. One person likes differences in color, the other uniform" (underlined by the court).
The court assumes that it is not proven that Tulipwood doors are not fit to be installed unpainted and assumes that this completely depends on the taste of the end-customer. Moreover, the court finds that [Buyer] at least partially installed the doors at its customer's place (see the letter of 15 September 2005: "We have ... received a claim to uninstall ...") which is remarkable, if such doors are unfit for the special purpose that would be made known to the seller. The [Seller]'s delivery is in conformity with Art. 35(2)(b) CISG.
The burden is on the buyer to prove that delivered goods do not comply with a sample (see Antwerp 26 April 2004, Limb. Rechtsl., 2004, 249, note by A. Stevens). There, the court held that the buyer did not succeed in proving that the delivered goods did not posses the qualities of goods that the seller had offered to the buyer as a sample or model. The sample, that was provided here, was too small for the buyer to be entitled to derive from it that there would be no difference in color in the eventual delivery. It cannot be expected of the seller that it would deliver a complete door as a sample.
Finally, the court takes into account that the [Buyer] should be considered a specialist ("the biggest specialist shop in doors of the middle Netherlands").
The [Seller]'s claim is upheld. The [Buyer]'s counterclaim is denied.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Belgium is referred to as [Seller] and Defendant 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 arbitration awards 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