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CISG CASE PRESENTATION

Belgium 13 November 1992 District Court Brussels (Maglificio Dalmine v. Covires) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/921113b1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19921113 (13 November 1992)

JURISDICTION: Belgium

TRIBUNAL: Tribunal [District Court] commercial de Bruxelles

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: A.R. 2700/90; R.G. 4.825.91

CASE NAME: Maglificio Dalmine S.r.l. v. S.C. Covires

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Belgium (defendant)

GOODS INVOLVED: Clothes


Case outline

Reproduced with permission from CISG-Belgium database of Katholieke Universiteit Leuven

Application of CISG European Contracts Convention Italian law applicable CISG applicable in Italy

Hierarchy between European Contracts Convention and CISG CISG has prevalence

Interest law applicable to calculation law of contract not law of forum

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(b)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 53 ; 71 ; 74 ; 78

Classification of issues using UNCITRAL classification code numbers:

53A [Obligations of the buyer: obligation to pay price of goods];

71A [Suspension of performance: apparent that other party will not perform substantial part of obligations];

74A [Damages (general rules for measuring): loss suffered as consequence of breach];

78B [Interest on delay in receiving price: rate of interest]

Descriptors: Price ; Suspension of performance ; Damages ; Interest

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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

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=175&step=Abstract>

Italian: Diritto del Commercio Internazionale (1997) 721 No. 129

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/1992-11-13.html>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=175&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 352, 430 [Arts. 54, 71]; Petrochilos, Arbitration Conflict of Laws Rules and the CISG (1999) n.87; Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings]

Spanish: Castellanos, [1998] Thesis [Free Will and Uniform Law in International Sales], Carlos III de Madrid, 79 n.165

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Tribunal Commercial Bruxelles
Maglificio Dalmine S.l.r. v. S.C. Covires

13 November 1992 [A.R. 2700/90]

Translation [*] by Amy Hornitzky [**]

I. THE CLAIM

The Plaintiff [Seller]'s principal action is to require the Defendant [Buyer] to pay to the [Seller]:

   -    38,442 Belgian francs, in addition to a bill of 2 April 1990 for the sale of goods payable 2 June 1990;
 
   -    Interest since this date at a rate of 10% per annum;
 
   -    10,000 Belgian francs, monetary compensation; and
 
   -    The equivalent of 2,399,600 Italian lire in Belgian francs for losses and interest due on the production of goods which were not delivered due to [Buyer]'s persistent failure to pay for the goods.

The [Buyer] agrees to settle the proceedings if the [Seller] agrees to provide the following information:

  1. The identity of its institutions;

  2. The identity of those persons who determined to 'launch' the citation and the certified copy of this decision;

  3. A certified copy of its statutes; and

  4. "Lex societatis", the [Buyer] shall convey to the public that it understood Italian Law to be the applicable jurisdiction.

In a subsidiary matter, the [Buyer] believes that there is a need to consult the European Court of Justice in Luxembourg on the point as to whether the Rome Convention of 19 June 1980 takes precedence over the Vienna Convention of 11 April 1980 when the two conventions are in conflict.

In an even more subsidiary matter, the [Buyer] agrees to the partial basis of a claim for competition of 38,448 Belgian francs and a reduction in court costs.

The [Buyer] brings a cross claim to counter the [Seller]'s action. [Buyer] seeks to have the court require [Seller] to pay 100,000 Belgian francs for loss to the [Buyer] and interest caused due to the [Seller]'s failure to assume responsibility.

The [Seller] produces clothing while the [Buyer] operates a business selling these types of garments. The dispute between the parties concerns, on the one hand, an order which was placed and billed on 2 April 1990, and which was supposed to be paid 2 June 1990.

This invoice is not disputed. There is also an order of 8 February 1990 which was only partly completed.

[...]

II. THE CONFLICT BETWEEN VIENNA CONVENTION 1980 AND ROME CONVENTION 1980

The parties refer to the Hague Convention of 15 June 1955 and agree that the law applicable to their contractual relations is Italian law, on the basis that this is expressly designated by the contractual clause.

Italy approved the Vienna Convention of 11 April 1980 which relates to the sale of international goods. This Convention entered into force in Italy on 1 January 1988 and forms part of the internal Italian judicial system. It is appropriate to apply the Convention in this matter.

If the parties agree on this issue,m then [Buyer] will want to know whether the Rome Convention of 1980 which was ratified by Belgium takes precedence over the Vienna Convention which Belgium did not ratify.

Article 21 of the Rome Convention provides that the Convention will not apply to those international conventions to which a Contracting State is or will become a party. It is the application of the law of precedence where a specific law overrules a general law or provision.

Italy is a party to the Hague Convention of 1955, to the Vienna Convention of 1980 and the Rome Convention of 1980.

By virtue of the aforementioned rule, the Hague Convention and the Vienna Convention take precedence over the Rome Convention (see N. Watté 'La vente internationale de marchandises: bilan et perspectives' RDCB, 1991, pp. 366 and 5, no. 12 (note 24). Consequently, there is no means of transferring the matter to the Court of Justice.

IV. PRINCIPAL ACTION: INVOICE FOR 38,442 BELGIAN FRANCS

The invoice for 38,442 Belgian francs, for which payment is demanded, is not disputed. It is due.

The [Seller] is also entitled to interest on delayed payment owing from when the debt was due to be paid on 2 June 1990, as per article 1224 of the Italian Civil Code. This interest is due to be paid at a rate of 5% owing from 2 June 1990 until 15 December 1990 (1,190 Belgian francs) and at a rate of 10% from 16 December 1990 until complete repayment (amendment to the rate of interest payments in article 1284 of the Italian Civil Code which entered into force on 16 December 1990).

The [Seller] is in addition entitled to indemnity for damage sustained due to non-payment of the agreed amount being 10,000 Belgian francs assuring a re-evaluation of the outstanding debt in accordance with the increased costs of living in [Seller]'s country, in compliance with Italian law.

Contrary to what [Buyer] claims, the interest due on payment for redressing damage endured by a creditor due to wrongful default in settling a contractual debt results from the Law of Obligation and the Law of Contract and not from Procedural Law. If the applicable law in a jurisdiction specifies rules of procedure which are relevant to the devolution of the matter, these rules apply and cannot be extended to encompass interests of parties who have defaulted, which are indifferent to the functioning of the judicial system (F. Rigaux, Droit international privé, t. II, p. 208)

Discussions relevant to the interests of the defaulting party are at the heart of / form the basis of debates and are also subject to Italian law.

[Buyer] disputes the action taken by the [Seller] against Mr Bonaventure, where the [Seller] requested the same payment sum as that calculated and alleges that there was a scandal, claiming that the actions and behavior of the [Seller] equated to 'mafioso' maneuvers. The [Seller], however, establishes that the two causes of action have two different causes: one based on the execution of the contract by the contractual partner, and the other intending to obtain the respect of a guaranteed engagement/agreement undersigned by a third party. The [Seller] alleges that it is completely justified in acting as it did, and that the tone and vocabulary employed by [Buyer] are particularly inappropriate in the instance of a party who devises unfounded arguments in order not to have to pay a debt that has been due for more than two years and who has never filed the slightest claim or protest.

V. NON-EXECUTED ORDER; THE PRINCIPAL ACTION AND COUNTERCLAIM

[Buyer] ordered the goods in dispute from the [Seller] in February 1990 by way of the intermediary representative M.B. This order was to be effected by winter 1990-1991.

[Buyer] only received a partial delivery and claims a loss on the non delivered goods that it estimates at ex aequo et bono 100,000 Belgian francs.

The receipt presented to the court indicates that the non delivered goods had a value of 69,220 Belgian francs (receipt of [Buyer]). The [Seller] legitimately determined to suspend its payments to the [Buyer] for as long as the [Buyer] did not fulfil its obligations.

With regard to the demand for payment by the [Seller] in June 1990, being fixed, to be paid in cash and due for payment, the [Seller] was justified in not pursuing the disputed goods by virtue of the exception for non-execution.

The [Seller] correctly states that [Buyer] understood this since [Buyer] never pursued the undelivered goods.

This also confirms to the court that [Buyer] never addressed any complaint to the [Seller].

The [Buyer]'s claim, which was brought for the first time in October 1991, is unfounded. The [Seller] claims payment of some 2,400,000 Belgian francs in order to be indemnified from prejudice it would have suffered for having produced the goods ordered by [Buyer] with the promise of having to cancel the debt, without ever having been able to deliver them to [Buyer] because the promise to pay was not honored.

It arises from the 6 and 7 items delivered by the [Seller] that it did not accept the disputed order in June 1990, and that if its representative, M.B, paid the previous invoices at the end of August 1990, this according to his affidavit/evidence/narrative was not realized.

The [Seller] does not establish having fabricated the undelivered orders, nor having partially completed them at a reduced price. There is nothing of this nature in the file and the [Seller] does not justify the alleged damage in these circumstances.

[JUDGMENT]

The Tribunal:

Declares the principle action legally founded and finds the following.

   -    The [Buyer is to pay the [Seller] the amount of ten thousand Belgian francs, thirty-eight thousand four hundred and forty-two Belgian francs as well as interest on 38,442 Belgian francs at a rate of 10% from 16 December 1990 until the hearing then the legal interest at a rate of 10% until complete payment.
 
   -    Declares the counterclaim admissible but not founded.
 
   -    Puts the [Seller]'s expenditure at eleven thousand one hundred Belgian francs and five thousand eight hundred and ninety-seven Belgian francs and with respect to the [Buyer] at eleven thousand one hundred Belgian francs.
   -    [Buyer] is to pay compensation.

Authorizes the provisional execution of the judgment.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of Belgium is referred to as [Buyer]/

** Amy Hornitzky has completed her Arts (languages) and Law degrees in Australia. She is currently interning in a law firm in Germany and will commence her LL.M. in the Netherlands in 2008.

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Pace Law School Institute of International Commercial Law - Last updated May 2, 2008
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