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CISG CASE PRESENTATION

Belgium 2 October 2007 Rechtbank van Koophandel [District Court] Hasselt [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/071002b1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20071002 (2 October 2007)

JURISDICTION: Belgium

TRIBUNAL: Rechtbank van Koophandel [District Court] Hasselt

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: A.R. 06/2794

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Belgium

BUYER'S COUNTRY: Netherlands

GOODS INVOLVED: Stairs


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 1 ; 3 ; 35 ; 74

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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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): <http://cisgw3.law.pace.edu/cisg/text/AR-06-2794.pdf>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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CASE TEXT (English Translation)

Rechtbank van Koophandel [District Court] Hasselt

2 October 2007 [A.R. 06/2794]

Translation by Maria-Clara Van den Bossche

The Hasselt Commercial Court , 4th Chamber, has pronounced the following judgment: (...)

In the Matter:

A.R. 06/2794 [Seller], with its seat at [...], enterprise number [...],

Claimant, represented by [...], counsel [...], pleading in the Dutch language;

Against:

[Buyer I] company constituted under the laws of the Netherlands, with its seat at [...], [Buyer II]., with its seat at [...], enterprise number [...], Defendants, represented by Mr [...] loco Mr [...], counsel [...], pleading in the Dutch language;

Decision:

In view of the summons served by bailiff [...] loco [...], bailiff with seat in [...] served on 3 August 2006 to [Buyer II] and on 4 August 2006 to [Buyer I],

In view of the decision dated December 8, 2006 pronounced pursuant to Article 7472 of the Judicial Code;

In view of the briefs of [Buyer I & Buyer II] filed with the Registry at 31 January 2007;

In view of the briefs of [Seller] filed with the Registry at 20 March 2007;

In view of the additional briefs of [Buyer I & Buyer II] filed with the Registry at 30 April 2007;

In view of the additional briefs of [Seller] filed with the Registry at 21 May 2007;

In view of the additional and summary briefs of [Buyer I & Buyer II] filed with the Registry at 29 June 2007;

After hearing the pleas and conclusions of the parties in Dutch at the hearing of 4 September 2007;

Considering the exhibits submitted;

Requests of the Parties:

1. [Seller] requests:

To have its claim declared permissible, admissible and founded. Accordingly, adjudicating on the main claim, to order [Buyer I & Buyer II] to pay, jointly and indivisibly, at least the one, failing payment by the other, the amount of 39.920,26 euro increased with the judicial interests as of August 3, 2006 until full payment; to order [Buyer I & Buyer II] to pay, jointly and indivisibly, at least the one, failing payment by the other, the amount of 16.657,13 euro increased with the judicial interests as of August 3, 2006; to order [Buyer I & Buyer II] to pay the costs of the proceedings and to order that the forthcoming decision shall be provisionally enforceable.

Adjudicating on the counterclaim, to declare it unfounded, to reject it and to order [Buyer I & Buyer II] to pay the costs.

2. [Buyer I & Buyer II] request:

Primarily to decide that [Seller]’s claim needs to be reduced to an amount of 35.227,00 EUR. To decide that [Buyer I & Buyer II] are entitled to a compensation from [Seller] of 69.045,00 EUR. To compensate the mutual claims and consequently to order [Seller] to pay to [Buyer I & Buyer II] the sum of 3.818,00 EUR, to be increased with an interest of 11% as of 19.05.2006 until the day of the final payment. Also, to order [Seller] to pay the costs of the proceedings and to order that the forthcoming decision shall be provisionally enforceable.

On a subsidiary basis, to appoint an expert with the assignment to verify whether the stairs originally delivered by the claimant met the requirements applicable in England and, for the remainder, to send the case back to the docket.

PRECEDENTS

1. [Buyer I & Buyer II] have acted within the framework of a temporary commercial company as subcontractor of an English company Multiplex [...] on a building site in [...] near London.

For the delivery of concrete stairs and balconies, they have relied on [Seller]. The order of the stairs has been established based on the following documents:

- request for quotation from [Buyer II] dated December 2, 2005;

- quotation from [Seller] dated December 15, 2005;

- customized quotation from [Seller] dated January 5, 2006;

- order confirmation from [Buyer I & Buyer II] dated January 19, 2006.

Both the quotation from [Seller] dated January 5, 2006 and the order confirmation from [Buyer I & Buyer II] explicitly mention that the stairs and the balconies are fabricated "with the upper surface smooth from the mold." A PVC anti-slip tip is mentioned as an option. The order confirmation further mentions that the production takes place based on the plans approved by [Buyer I & Buyer II], after potential remarks from their client Multiplex [...].

2. According to [Buyer I & Buyer II], on March 6, 2006 a site visit at [Seller]'s took place during which the English main contractor [...] would have pointed to the need of constructing the stairs in conformity with the UK technical standards ("British Standards"). These standards would prescribe that the steps must be fitted with an integrated anti-slip tip, which means that the steps cannot be finalized smooth in the production, but need to be fitted with a cut-out.

On March 6, 2006, [Seller] had started the production of the stairs in accordance with the implementation plans approved by [Buyer I & Buyer II] by email dated February 7, 2006.

The client [...] refused the first stairs because the steps were smooth and not fitted with a cut-out.

They could therefore not meet the British technical standards. At the request of [Buyer I & Buyer II], [Seller] put the production on pause on March 9, 2006.

By fax dated March 14, 2006, [Seller] informed [Buyer I & Buyer II] that, due to the halt of the production tables, [Seller] was suffering capacity-losses and that this capacity-losses will be charged to them.

The parties would consequently have agreed that the stairs already in production would be further finalized smooth without cut-out to be delivered as such on the building site. The stairs of core 6, 1, 7 and 8 are fitted with a cut-out by [Seller], upon receipt of the necessary information thereto by e-mail dated March 31, 2006 from [Buyer I & Buyer II]

For the capacity-losses allegedly suffered by [Seller], [Seller] invoiced the amount of 15.050 euro, by way of invoice no. 20061265 dated April 3, 2006.

By letters dated 12 and 19 May 2006, [Buyer I & Buyer II] challenged this invoice from [Seller]. They claim to be entitled to a damage claim themselves, because they had to make considerable additional costs as a result of the delivery of non-conforming goods. These costs are estimated at an amount of 96.045 euro.

The parties did not reach an agreement and [Seller] served a summons.

3. [Seller] claims payment from [Buyer I & Buyer II] of the following amounts:

- for the production loss: invoice no. 20061265 dated April 3, 2006 for the amount of 15.050 euro;

- for the production and delivery of prefabricated elements: 35.227 euro in principal, composed as follows: plus default interest and penalty clauses in accordance with her general conditions.

4. In essence, [Buyer I & Buyer II] invoke that:

- [Seller]'s general conditions are not enforceable against them;

- due to the delivery of stairs, which do not conform with the British technical standards, [Seller] has not complied with its obligation to deliver a good in conformity with the agreement, within the meaning of the Vienna Sales Convention. It was however informed of the fact that the stairs were meant to go to Great Britain;

- the pause in the production was only due to the fact that [Seller] did not comply with the technical standards and to the difficulty for [Seller] to eventually fabricate stairs with a cut- out;

- based on the Vienna Sales Convention, they were entitled to payment of the damages they suffered and that upon compensation with [Seller]'s outstanding invoices for the amount of 35.227 euro, they were still entitled to payment of an amount of 33.181 euro. For this amount, they file a counterclaim.

ASSESSMENT

Applicability of the Vienna Sales Convention

When the matter concerns the sale of movable goods between parties who are established in different States, which are Contracting States to the Vienna Sales Convention, this Convention applies.

At the time of the delivery, the goods were movable.

Goods that are still to be produced also fall under the scope of the Vienna Sales Convention (Article 3). The fact that the question regarding the alleged non-conformity of the stairs arises at a time that the production thereof was not finished, does not exclude the application of the Vienna Convention.

When more than two parties are involved in the sale, such as in this case, one seller and two buyers, it is sufficient for the Vienna Sales Convention to apply that two of these parties are established in different States (see J. ERAUW, “Wanneer is het Weens Koopverdrag van toepassing?” in H. VAN HOUTTE, J. ERAUW and P. WAUTELET (eds.), Het Weens Koopverdrag, Antwerp, Intersentia, 1997, p. (9), 31, nr. 1.23).

The Vienna Sales Convention is applicable.

Proof of non-conforming delivery. The question that rises is whether [Seller] is guilty of a non-conforming delivery by fabricating stairs destined for Great-Britain which do not meet the technical standards applicable in that country.

The agreement between the parties makes no mention of these British technical standards. On the contrary, everywhere in the agreement, mention is made of a smooth finish without cut-out. There is however mention of a PVC anti-slip tip as an option, but this concerns an anti-slip tip, which is attached on the smooth upper side of the steps, which does not require a cut-out in the steps.

[Seller] has designed and fabricated the stairs in conformity with the technical standards applicable in Belgium. These do not prescribe that a cut-out is required.

When a buyer places an order for products destined for introduction and use abroad, it cannot be reasonably expected from the seller to obtain information regarding the technical rules applicable in that foreign country, unless the seller had taken the initiative to prospect the country of the buyer, which is not the case here (see J.H. HERBOTS, "Verplichtingen van de Verkoper", in H. VAN HOUTTE, J. ERAUW and P. WAUTELET (eds.), Het Weens Koopverdrag, Antwerp, Intersentia, 1997, p. (99), 132, nr. 4.47)

The provision of a cut-out even goes against the clear contractual provision that the stairs are constructed "with the upper surface smooth from the mold".

Nor does the order confirmation mention that "the construction of the stairs must first be approved by our client [...]" in this case results in [Seller]'s liability. [Seller] always has transmitted the execution plan to [Buyer I & Buyer II] for verification. It was consequently up to them to submit these plans to [...]. and to communicate possible remarks to [Seller] in a timely manner.

No evidence has been adduced to the effect that the necessity of a cut-out has ever been pointed out to [Seller], not even during the site visit on the day production started. In accordance with the provisions of the order confirmation, [Seller] has only initiated the production after the execution plans were approved by [Buyer I & Buyer II] by e-mail dated 7 February 2006.

Hence, it is not proven that the products did not comply with the agreement.

[Buyer I & Buyer II] are not entitled to payment of any compensation for the delay possibly incurred and for additional work resulting from the non-compliance with the British technical standards. The counterclaim of [Buyer I & Buyer II] is unfounded.

Compensation for capacity loss - Invoice 20061265

On the basis of the Vienna Sales Convention, [Seller] claims compensation for the production loss suffered by it. Indirect damages are also eligible for compensation.

[Buyer I & Buyer II] do not contest that production was halted at their request.

In March 2006, [Seller] has informed [Buyer I & Buyer II] several times in writing that the capacity-losses would be charged to them. Only by e-mail dated 31 March 2006, [Buyer I & Buyer II] have for the first time responded to this in vague terms.

The Court assumes that [Seller] has suffered capacity-losses. The decision of [Buyer I & Buyer II] to halt the production was taken at a time that some of the production tables were reserved for the production of the prefabricated elements. Considering the planning requirements, it is not possible to immediately mobilize these tables for other orders.

Based on all of the elements brought to the knowledge of the Court, the capacity-losses can be estimated in reasonableness and fairness at 7,500.00 €.

A secondary contractual obligation, such as compensation on grounds of non-fulfillment of the obligations entered into, does not give rise to the drawing up of an invoice (Antwerp 4 April 2000, no. 1998/AR/2164, unpublished).

This concerns a false invoice. Such claims cannot be elevated with late interests and a penalty clause.

[Seller] is however entitled to payment of compensatory interests on the amount of the damage as of 1 April 2006 at the ordinary legal rate.

Invoices for the production and delivery of prefabricated elements

[Buyer I & Buyer II] do no contest being bound for payment of the outstanding invoices for the delivery and production of the prefabricated elements for the amount of 35,227.00 €.

Based on her general conditions, [Seller] equally claims payment of a penalty clause reduced to 10% and of late interests reduced to 10%.

[Buyer I & Buyer II] rightfully invoke that [Seller] does not prove that they were informed of these general conditions.

[Seller] does not submit a copy of her invoices. It does submit a copy of its general conditions, but these conditions are printed in such a small font that they are hardly legible.

It is therefore not established that [Buyer I & Buyer II] were informed of the general conditions of [Seller] The general conditions are thus not enforceable against them.

Pursuant to the Act of 2 August 2002 on combatting payment arrears, [Seller] is however entitled to payment of late interests and a compensation.

The Court accepts that the parties have agreed upon a payment term of sixty days as from the invoice date.

In the opinion of the Court, an amount equal to 10% of the sum to be recovered, covers the relevant recovery costs.

[Seller]’s claim is partially founded. The counterclaim of [Buyer I & Buyer II] is unfounded. [Buyer I & Buyer II] are liable for the costs of the proceedings.

For These Reasons

The Court, giving judgment after trial, Declares [Seller]’s claim admissible and partially founded, Declares [Buyer I & Buyer II]’s counterclaim admissible and unfounded. Accordingly, orders [Buyer I & Buyer II] to pay, jointly, the one, failing payment by the other, to [Seller]

(i) an amount of 38.749,7 euro, the respective invoice amounts increased with the default interests at the rate referred to in Article 5 of the Act of August 2, 2002 on the fight against payment arrears starting as of sixty days after the date of the respective invoices until the date of the summons, and increased with the judicial interests as of the date of the summons dated 4 August 2006 until full payment at the interest rate referred to in Article 5 of the Act of August 2, 2002 on the fight against payment arrears on the amount of 35.227,00 € and at the ordinary interest rate on the amount of 3.522, 7 €;

(ii) an amount of 7.500,00 € increased with the compensatory interests as of April 1, 2006 until the date of the summons dated August 4, 2006 and with the judicial interests at the ordinary interest rate as of the date of the summons until the date of payment.

Orders [Buyer I & Buyer II] to jointly pay the costs of the proceedings, on the part of [Seller] estimated at 544,20 € for the costs of the register fees and of the summons and 364,40 € as indemnity for the procedure and estimated on the part of of [Buyer I & Buyer II] estimated at 364,60 € as indemnity for the procedure.

Declares that the judgment is provisionally enforceable, irrespective of any recourse and without guarantee.

Decided accordingly by the fourth Chamber of the Hasselt Commercial Court, composed of Sir [...], attached judge, president of the Chamber and the Sirs [...] and [...], judges in commercial matters and pronounced by Sir [...], assisted by Madam [...] deputy-registrar on October 2, 2007.

DELIVERED AS A CERTIFIED COPY BY THE ANTWERP COMMERCIAL COURT, SECTION HASSELT

Hasselt, May 3, 2016, The registrar,

D. VAN DER GOTEN

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Pace Law School Institute of International Commercial Law - Last updated May 19, 2016
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