CISG CASE PRESENTATION

Belgium 7 April 1998 Appellate Court Antwerp (LPG installation case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/980407b1.html]

Case Table of Contents

• Case identification
• Case outline
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)
• Guide to links contained in case presentations

Case identification

DATE OF DECISION: 19980407 (7 April 1998)

JURISDICTION: Belgium

TRIBUNAL: Hof van Beroep [Appellate Court] Antwerpen

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: A.R. 3407/94

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Netherlands

BUYER'S COUNTRY: Belgium

GOODS INVOLVED: LPG installation

Case outline

Classification of issues present

APPLICATION OF CISG: No

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 2(a)

Classification of issues using UNCITRAL classification code numbers:

2A [Exclusions from the Convention: purchases for personal, family or household use]

Descriptors: Consumer sales

Editorial remarks

• Unavailable

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 of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/1998-04-07.html>; TBBR (1999) 83

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

Queen Mary Case Translation Programme

[...]

Both parties state that their contract is a contract of sale;

[Seller] invokes the Rome Convention of 19 June 1980 and on that basis states that Dutch law is applicable, while [Buyer] invokes the applicability of Belgian law on the basis of the Hague Convention of 15 June 1955;

The Rome Convention is the Belgian private international law for contracts (cf. J. Erauw, Beginselen van IPR, Story-Scientia, 1985, p. 238); the same is true for the Hague Convention of 1995 (sic) as to international contracts of sale;

Considering the general character of the Rome Convention, namely, since this convention concerns all contracts with an international character (except the contracts excluded in Article 1.2°) and, considering the specific character of the Hague Convention, it must be concluded that the latter is only applicable to international sales of goods between merchants, the so-called "commercial sales" (cf. A. Heyvaert, Belgisch internationaal privaatrecht - een inleiding, 1995, p. 155);

The contract between the parties is not a commercial sale, but a sale between a merchant and a private person, so it must be concluded that the Rome Convention is applicable;

The parties have not expressed a choice of law in their contract. Therefore, Article 4.1 of the Rome Convention must be applied. This Article states that the contract is governed by the law of the State with which it is most closely connected;

According to Article 4.2 of the Rome Convention, the contract is presumed to be most closely connected with the country in which the party who is to effect the performance that is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party's trade or profession, that country shall be the country in which the principal place of business is situated

The parties agree that [Seller] is the party that had to effect the characteristic performance, namely, the delivery of an LPG-installation;

It is not disputed that [Seller] acted in the course of its trade or profession, as it is expressed in the Registry of Corporations of the Chamber of Industry and Commerce for Western North-Brabant, namely "Reparation of vehicles, installation of LPG-installations in vehicles and sale of these installations ...";

While [Seller] had its residence in Belgium at the time the contract was concluded, it performed its business in the Netherlands. Therefore it must be concluded that Dutch law is applicable, since [Buyer] has not proved elements for the application of the exception of Article 5 of the Rome Convention;

[...]

FOOTNOTES

* All translations should be verified by cross-checking against the original text.

** 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 case notes on the CISG and International Commercial Arbitration. Kristof Cox can be contacted at <Kristof.cox@law.kuleuven.be>.