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CISG CASE PRESENTATION

Belgium 18 May 1999 Appellate Court Antwerp (Vandermaesen Viswaren v. Euromar Seafood) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/990518b1.html]

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

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Case identification

DATE OF DECISION: 19990518 (18 May 1999)

JURISDICTION: Belgium

TRIBUNAL: Hof van Beroep [Appellate Court] Antwerpen

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: A.R. 3312/96

CASE NAME: Vandermaesen Viswaren N.V. v. Euromar Seafood B.V.

CASE HISTORY: 1st instance Rb van Koophandel Hasselt 8 October 1996

SELLER'S COUNTRY: Netherlands (defendant)

BUYER'S COUNTRY: Belgium (plaintiff)

GOODS INVOLVED: Lobsters


Case outline

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

Non-delivery damage caused to buyer (replacement goods more expensive) seller liable for damages

Buyer entitled to interest

Seller has counterclaim interest according to applicable national law: Dutch law

Judgment confirmed except for change of amount of damages

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 74 [Also cited: Articles 45 ; 77 ; 78 ]

Classification of issues using UNCITRAL classification code numbers:

74A [General rules for measuring damages: loss suffered as consequence of breach]

Descriptors: Damages

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Editorial remarks

Excerpt from Siegfried Eiselen, Proving the Quantum of Damages, 25 Journal of Law and Commerce (2005-06) 375-383.

In this case, the plaintiff ordered an amount of seafood from the defendant for delivery on a specific date and time. The defendant indicated to the plaintiff that delivery would take place later on that day, but then failed to make any delivery whatsoever.

The court a quo had awarded the damages on the basis of the extra costs incurred on a replacement purchase, extra delivery costs and an amount of 25,000 Belgian francs for the extra effort and trouble of the plaintiff to acquire the replacement goods. This amount was awarded ex aequo et bono as the exact amount of the costs incurred by the extra effort was not easily determinable.

The court of appeal agreed with the court a quo that an amount ex aequo et bono should be awarded as there was no exact quantification of the damages under this head. The court however increased the amount to 100,000 Belgian francs.

[N]o closer account is given of the origin of these principles in the decision. It is clear that these principles are not contained in the CISG and one is therefore left with the deduction that they are specific principles, applicable in Belgian law, where a party has proved that it had suffered damages, but is unable to prove the exact extent of the damages. (citations omitted)

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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): CISG-Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/1999-05-18.html>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: 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]; Eiselen, Proving the Quantum of Damages, 25 Journal of Law and Commerce (2005-06) 375-383

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Hof van Beroep [Court of Appeals] Antwerp
Vandermaesen Viswaren. N.V. [Buyer] v Euromar Seafood. B.V. [Seller]

18 May 1999 [1996/AR/3312]

Translation [*] by Kristof Cox [**]

[...]

[Buyer] filed a claim against [Seller] on 27 February 1996 for payment of 435,000 Belgian francs [BEF], plus interest from 21 December 1995. [Buyer] asked for costs and compensation reduced by the sum of money that [Buyer] still had to pay to [Seller];

[Seller] filed a counterclaim in a memorandum that was deposited at the registry of the Commercial Court of Hasselt on 17 May 1996. [Seller] seeks payment of 54,325.50 Dutch florins (NLG), namely, 47,239.50 NLG plus 7,086.00 NLG for a damages penalty provided in the contract between the parties, plus interest and costs;

The Court of First Instance described the object of the claims in detail, and this Court refers to those. The facts and allegations may be summarized as follows:

   -    [Buyer] ordered lobsters from [Seller] that had to be delivered on 21 and 22 December 1995. [Buyer] alleges that [Seller] confirmed this order on 18 December 1995. On 21 December 1995, [Seller] first made known that the delivery would take place at a later time, namely at 0.30 h instead of 22 h. Afterwards, it turned out that no delivery took place, either on 21 December, or on 22 December. Buyer alleges that this caused it to suffer damages in the amount of 110,000 BEF, namely 10 % of the goods that had to be delivered plus a compensation of 25,000 BEF because [Buyer] had to take measures to get lobsters from another Dutch supplier. Further, [Buyer] claims 200,000 BEF for the difference in the price [Buyer] had to pay and 100,000 BEF for the extra costs of delivery, being 435,000 BEF in total.
 
   -    [Seller] filed a counterclaim for payment of invoices for prior deliveries, invoices that are not disputed with the exception of the [Seller]'s penalty damages claim.

The Court of First Instance decided that [Buyer]'s claim was partially founded and ordered [Seller] to pay a sum determined ex aequo et bono at 25,000 BEF, plus interest from 25 December 1995 and 20 % of the costs. The Court also declared that the [Seller]'s counterclaim was justified and awarded [Seller] interest at 7 % from 14 days after the respective due dates and 80 % of the costs. The issues on appeal are:

   -    The [Buyer] seeks to have the judgment of the Court of First Instance quashed and to have its original claim sustained. [Buyer] claims that [Seller] should be ordered to pay the sum of 435,000 BEF plus compensatory interest, judicial interest and procedural costs of both instances.
 
   -    [Seller] requests that the [Buyer]'s claim be denied and seeks to have the [Buyer] ordered according to [Seller]'s original counterclaim including its claim for penalty damages.

The Court of First Instance after an elaborate examination decided that the CISG is applicable to the contract. The parties have not disputed this.

The dispute centers around:

   -    [Buyer]'s allegation that two orders were placed with [Seller] for the delivery of lobsters, namely, on 21 and 22 December 1995; that [Seller] could not deliver the first order on time and later cancelled both orders; [Buyer] alleges that thus [Seller] has committed a contractual breach for which compensation is claimed.
 
   -    [Seller]'s allegation that [Buyer] cancelled the first order because delivery was not possible at the time as agreed. [Seller] offers witness evidence to support this allegation. [Seller] further alleges that it never confirmed the second order.

It is clear from the arguments of the parties that:

   -    Orders were in fact placed with [Seller] for the delivery of lobsters;
 
   -    There may have been a discussion about the second order and the [Seller]'s ability to deliver; and
 
   -    However, it was stated that, in the event [Buyer] also wanted to order lobsters for 22 December 1995, this had to be confirmed by 18 December 1995 at the latest, and it does not seem that [Seller] confirmed the order of 22 December 1995 explicitly, when it was clear that there was a possibility to deliver.

Thus, there is doubt about whether there was an agreement between the parties concerning the second order. Considering that, this claim is not proven.

However, it is not disputed that the first order could not be delivered on time and eventually was not delivered. Although [Seller] alleges that [Buyer] cancelled this order because of the late delivery, this is not substantiated.

This Appellate Court rules that:

   -    The hearing of witnesses more than three years after the facts is of no use since this would not be sufficiently reliable; moreover, no written declaration was ever brought in to explain the factual elements and that could be used as a guide;
 
   -    [Seller]'s breach of the obligation to deliver the first order is a breach of contract for which the [Buyer] can claim compensation under Article 74 and 77 CISG;
 
   -    [Buyer] alleges that this breach caused it to suffered damage because it had to take extra measures to be able to comply with the demands of its customers, and that it had to pay additional funds to get lobsters on time from another supplier;
 
   -    This damage loss of the [Buyer] can be set at 100,000 BEF because there is no correct calculation of the damage.
 
   -    Concurrently, the [Seller]'s counterclaim is not disputed; therefore, this claim is sustained in its main sum;
 
   -    However, the penalty damage element of [Seller]'s claim cannot be sustained since no evidence is shown as to this and the parties did not have an agreement on it;
 
   -    The application of interest at 7 % starting fourteen days after the respective dates due is not disputed.

FOR THOSE REASONS

THE COURT

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Belgium is referred to as [Buyer] and Defendant of Netherlands is referred to as [Seller]. Amounts in the former currency of Belgium (Belgian francs) are indicated as [BEF]; amounts in the former currency of Netherlands (Dutch florins) are indicated as [NLG].

** 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>.

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Pace Law School Institute of International Commercial Law - Last updated April 7, 2008
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