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CISG CASE PRESENTATION

Belgium 1 March 1995 District Court Hasselt (J.P.S. v. Kabri Mode)
[Cite as: http://cisgw3.law.pace.edu/cases/950301b1.html]

Primary source(s) for case presentation: CISG-Belgium database of Katholieke Universiteit Leuven


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Case identification

DATE OF DECISION: 19950301 (1 March 1995)

JURISDICTION: Belgium

TRIBUNAL: Rechtbank [District Court] van koophandel Hasselt

JUDGE(S): P. Vanhelmont (presiding); D. De Preter, N. Bronckaers (rechters in handelszaken); W. Bours (griffier)

CASE NUMBER/DOCKET NUMBER: A.R. 3641/94

CASE NAME: J.P.S. BVBA v. Kabri Mode BV

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Netherlands (defendant)

BUYER'S COUNTRY: Belgium (plaintiff)

GOODS INVOLVED: Fashion goods (clothing)


UNCITRAL case abstract

BELGIUM: Rechtbank [District Court] van Koophandel Hasselt
1 March 1995 (J.P.S. BVBA v. Kabri Mode BV)

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/131]
CLOUT abstract no. 1255

Reproduced with permission of UNCITRAL

Abstract prepared by Emily Nordin

A Belgian plaintiff (i.e. the buyer) and a Dutch defendant (i.e. the seller) concluded contracts for the delivery of clothing of the winter collection. Two invoices were sent to the buyer, the first invoice dating 24 August 1993 and the second 27 August1993. Under each invoice, the payment was due within 30 days. The goods were delivered, but only partly paid for by the buyer, which placed a new order for clothing of the summer collection. The dates for delivery of this order were8 February 1994 and 25 March 1994.

On 25 April 1994, the seller wrote to the buyer requesting it to perform its obligation and make the payment in full of the first batch of goods delivered. The buyer replied stating that the delivery of the second order had to be done before25 March 1994 and the seller was in breach of contract.

In court, the buyer claimed damages for the breach, while the seller counter-argued pursuant to Articles 71-73 CISG. The seller also requested the Court to declare the contract avoided.

The Court held that Articles 71-73 CISG applied, since the buyer had not perform edits obligations after seven months from the date the payment was due. Such a severe delay justified the sellerís concern that the second order would also not be paid and entitled the seller to suspend the delivery of the second order until receiving a full payment for the first order.

The Court further explained that under the provisions of the Convention, courts do not avoid contracts: this is an entitlement of the parties themselves. Therefore, the Court interpreted the seller's request to avoid the contract in the sense that the seller avoided the contract and requested the judge whether this avoidance was grounded. The Court declared the avoidance grounded and reduced the buyerís request for damages.

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Case outline

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

Application of the CISG - Rules of Private International Law of the forum referring to law of Contracting State (Article 1(1)(b)) - Convention on the Law Applicable to Contracts for the International Sale of Goods (Hague Conference, June 15, 1955)

Temporal applicability of CISG - Article 100 CISG - In respect of formation of contract

Right to suspend performance - Article 71 CISG - Serious deficiency in performance of obligations concerning one installment

Sellerís right to avoid contract - Article 64 CISG - No need for court to declare contract avoided - Declaration of avoidance made by seller himself

Interest - Article 78 CISG - Rate fixed according to "settled case law" of the court

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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 64 ; 71 ; 78 [Also cited: Article 73 ; 100 ]

Classification of issues using UNCITRAL classification code numbers:

64A1 [Seller's right to avoid contract (fundamental breach of contract): buyer's failure to pay for goods];

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

78B [Interest on delay in receiving price (rate of interest): determined by standard practice of the court]

Descriptors: Avoidance ; Suspension of performance ; Interest

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=269&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): CISG-Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/1995-03-01.html>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=269&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Dutch: Erauw, [1998] Tijdschrift voor Privaatrecht (TvP 35) 1369 [1513 No. 255, 1523 No. 265]

English: Honnold, Uniform Law for International Sales (1999) 352, 430 [Arts. 54, 71]; van Houtte, 26 International Bus. Law. (1996) 331 [332 n.4]; 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]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 71 para. 10

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Pace Law School Institute of International Commercial Law - Last updated July 16, 2013
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