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CISG Article 78: Endless disagreement among
commentators, much less among the courts

Francesco G. Mazzotta
July 2004

Appendix 3

BELGIUM

Courts

Rechtbank van Koophandel Commercial Court
Tribunal de Commerce
Hof van Beroep Appellate Court

1. Tribunal de Commerce Bruxelles, November 13, 1992, available at <http://cisgw3.law.pace.edu/cases/921113b1.html>.

Original language:     
Translation:
French
Unavailable

Unilex abstract:

"In addition, the Court granted the seller the right to interest at the Italian statutory rate, accruing from the date when payment was due."

2. Rechtbank van Koophandel Hasselt, February 23, 1994, available at <http://cisgw3.law.pace.edu/cases/940223b1.html>.

Original language:     
Translation:
Dutch
Unavailable

Unilex abstract:

"The seller was granted payment and the right to interest on the sums due, at the rate determined by the applicable national law (German law)."

3. Rechtbank van Koophandel Hasselt, March 16, 1994, available at <http://cisgw3.law.pace.edu/cases/940316b1.html>.

Original language:     
Translation:
Dutch
Unavailable

Unilex abstract:

"The seller was granted payment and the right to interest on the sums due, at the rate determined by the applicable national law (Dutch law)."

4. Tribunal de Commerce Bruxelles, October 5, 1994, available at <http://cisgw3.law.pace.edu/cases/941005b1.html>.

Original language:     
Translation:
French
Available

Unilex abstract:

"In addition, the Court granted the seller the right to interest at the rate of 14.5% per year, as requested by the seller, without further specifying the reason for such interest rate and without making any reference to Art. 78 CISG."

5. Rechtbank van Koophandel Hasselt, March 1, 1995, available at <http://cisgw3.law.pace.edu/cases/950301b1.html>.

Original language:     
Translation:
Dutch
Unavailable

Unilex abstract:

"The seller was further awarded damages and interest on the sums due. Without referring to CISG the Court applied the interest rate determined by the standard practice of the same Court."

6. Rechtbank van Koophandel Hasselt, May 2, 1995, available at <http://cisgw3.law.pace.edu/cases/950502b1.html>.

Original language:     
Translation:
Dutch
Unavailable

7. Rechtbank van Koophandel Hasselt, October 18, 1995, available at <http://cisgw3.law.pace.edu/cases/951018b1.html>.

Original language:     
Translation:
Dutch
Unavailable

Unilex abstract:

"In the Court's opinion the interest rate and the penalty clauses contained in the seller's invoices were unilateral and could not bind the buyer. Therefore Arts. 74 and 78 CISG were not derogated from. The Court assessed damages ex aequo et bono."

8. Rechtbank van Koophandel Hasselt, October 8, 1996, available at <http://cisgw3.law.pace.edu/cases/961008b1.html>

Original language:     
Translation:
Dutch
Unavailable

9. Rechtbank van Koophandel Hasselt, October 9, 1996, available at <http://cisgw3.law.pace.edu/cases/961009b1.html>

Original language:     
Translation:
Dutch
Unavailable

Unilex abstract:

"The seller was awarded interest according to Art. 78 CISG. As CISG does not determine the interest rate, the Court applied the average bank lending rate in the creditor's country (the seller's), because the creditor would have received interest on the sums due in that country had the debtor paid on time. No formal request was considered necessary under CISG."

10. Rechtbank van Koophandel Hasselt, November 8, 1995, available at <http://cisgw3.law.pace.edu/cases/951108b1.html>. SoMETHng WROONG!

Original language:     
Translation:
Dutch
Unavailable

Unilex abstract:

"The seller was awarded the rest of the purchase price and interests according to Art. 78 CISG. As CISG does not determine the interest rate, the Court applied the average bank lending rate in the creditor's country (the seller's), because the creditor would have received interest on the sums due in that country had the debtor paid on time. No formal request for payment was considered necessary under CISG."

11. Rechtbank van Koophandel Kortrijk, December 16, 1996, available at <http://cisgw3.law.pace.edu/cases/961216b1.html>.

Original language:     
Translation:
Dutch
Unavailable

Unilex abstract:

"The Court awarded the seller payment of the price as well as interest under Art. 78 CISG. As CISG does not specify the rate of interest payable, the Court, considering the circumstances of the case, decided to award interest at the Belgian statutory rate. Furthermore the Court, though observing that CISG does not require a formal request for payment, decided that under the circumstances of the case interest accrued from the date of the seller's formal request for payment."

12. Rechtbank van Koophandel Hasselt, January 21, 1997, available at <http://cisgw3.law.pace.edu/cases/970121b1.html>.

Original language:     
Translation:
Dutch
Unavailable

Unilex abstract:

"The seller was further awarded interests on the sums due. As CISG does not determine the interest rate (Art. 78 CISG) the Court held that the rate had to be determined in accordance with that provided for in the seller's standard terms if lower than the one required by the domestic law otherwise applicable to the contract."

13. Rechtbank van Koophandel Kotrijk, October 6, 1997, available at <http://cisgw3.law.pace.edu/cases/971006b1.html>.

Original language:     
Translation:
Dutch
Available

14. Rechtbank van Koophandel Hasselt, June 17, 1998, available at <http://cisgw3.law.pace.edu/cases/980617b1.html>.

Original language:     
Translation:
Dutch
Unavailable

15. Hof van Beroep Antwerpen, November 4, 1998, available at <http://cisgw3.law.pace.edu/cases/981104b1.html>.

Original language:     
Translation:
Dutch
Unavailable

16. Rechtbank van Koophandel Hasselt, June 17, 1998, available at <http://cisgw3.law.pace.edu/cases/981202b1.html>.

Original language:     
Translation:
Dutch
Unavailable

17. Hof van Beroep Antwerpen, May 18, 1999, available at <http://cisgw3.law.pace.edu/cases/990518b1.html>.

Original language:     
Translation:
Dutch
Unavailable

18. Rechtbank van Koophandel Hasselt, June 2, 1999, available at <http://cisgw3.law.pace.edu/cases/990602b1.html>.

Original language:     
Translation:
Dutch
Unavailable

19. Rechtbank van Koophandel Hasselt, February 17, 2000, available at <http://cisgw3.law.pace.edu/cases/000217b1.html>.

Original language:     
Translation:
Dutch
Unavailable

20. Rechtbank van Koophandel Ieper, January 29, 2001, available at <http://cisgw3.law.pace.edu/cases/010129b1.html>.

Original language:     
Translation:
Dutch
Unavailable

21. Rechtbank van Koophandel Kortrijk, April 4, 2001, available at <http://cisgw3.law.pace.edu/cases/010404b1.html>.

Original language:     
Translation:
Dutch
Unavailable

22. Rechtbank van Koophandel Veurne, April 25, 2001, available at <http://cisgw3.law.pace.edu/cases/010425b1.html>.

Original language:     
Translation:
Dutch
Available

Court (translation):

"The [seller] is entitled to a claim for interest because of the late payment, under Article 78 CISG. Whereas the CISG does not itself determine the interest rate in the case of late payment, this interest rate is determined according to the law of the currency of payment (cf. H. Van Houtte, "Het Weens Koopverdrag in het Belgish recht", T.B.H., 1998, p. 344 e.v., inz. No. 33, pp. 352-353); in this case, the Belgian legal interest."

23. Hof van Beroep Gent, May 23, 2001, available at <http://cisgw3.law.pace.edu/cases/010523b1.html>

Original language:     
Translation:
Dutch
Available

Court (translation):

"From the evidence, and more specifically "the standard purchase and sales clauses" ("Algemeine Einkaufs- und Verkaufsbedingungen", item no. 33, [seller]'s file), it is not evident that a contractual interest rate of 10% had been agreed upon. No other piece of evidence that could provide the contractual basis for such an interest rate has been presented. In these circumstances, interest is awarded equal to the legal Belgian interest rate from the date of the first proven default, being 2 July 1996. An interest award from an earlier date cannot be justified, because [buyer] has lawfully requested a deduction for a part of [seller]'s claim, being Bf 278,499."

24. Rechtbank van Koophandel Kortrijk, October 3, 2001, available at <http://cisgw3.law.pace.edu/cases/011003b1.html>.

Original language:     
Translation:
Dutch
Unavailable

25. Rechtbank van Koophandel Namur, January 15, 2002, available at <http://cisgw3.law.pace.edu/cases/020115b1.html>.

Original language:     
Translation:
French
Available

Court (translation):

"That invoice relates to some performances regarding the regulation of the machine; those performances are connected to the sale in such a way that the interest on the unpaid invoiced sum is owed notwithstanding the absence of a warning notice pursuant to Article 78 of the CISG. The calculation of interest is not contested as such."

26. Rechtbank van Koophandel Ieper, February 18, 2002, available at <http://cisgw3.law.pace.edu/cases/020218b1.html>.

Original language:     
Translation:
Dutch
Unavailable

27. Rechtbank van Koophandel Hasselt, March 6, 2002, available at <http://cisgw3.law.pace.edu/cases/020306b1.html>.

Original language:     
Translation:
Dutch
Unavailable

28. Rechtbank van Koophandel Hasselt, May 22, 2002, available at <http://cisgw3.law.pace.edu/cases/020522b1.html>.

Original language:     
Translation:
Dutch
Unavailable

29. Hof van Beroep Gent, October 17, 2002, available at <http://cisgw3.law.pace.edu/cases/021017b1.html>.

Original language:     
Translation:
Dutch
Unavailable

30. Rechtbank van Koophandel Veurne, January 15, 2003, available at <http://cisgw3.law.pace.edu/cases/030115b1.html>.

Original language:     
Translation:
Dutch
Unavailable

31. Hof van Beroep Gent, March 3, 2003, available at <http://cisgw3.law.pace.edu/cases/030303b1.html>.

Original language:     
Translation:
Dutch
Unavailable

32. Rechtbank van Koophandel Veurne, March 19, 2003, available at <http://cisgw3.law.pace.edu/cases/030319b1.html>.

Original language:     
Translation:
Dutch
Unavailable

33. Hof van Beroep Gent, May 12, 2003, available at <http://cisgw3.law.pace.edu/cases/030512b1.html>.

Original language:     
Translation:
Dutch
Unavailable

34. Hof van Beroep Gent, October 8, 2003, available at <http://cisgw3.law.pace.edu/cases/031008b1.html>.

Original language:     
Translation:
Dutch
Unavailable

35. Rechtbank van Koophandel Hasselt, February 25, 2004, A.R. 04/79, available at <http://cisgw3.law.pace.edu/cases/040225b1.html>.

Original language:     
Translation:
Dutch
Available

Court (translation):

"Articles 74 and 78 of the Vienna Sales Convention address the issue of measurement of damages and interest charged on sums in arrears without determining the applicable interest rate. The [Seller] therefore will have to rely on the lex contractus for the determination of this rate. The [Seller] was to perform the most characteristic performance of the contract, and the parties have not agreed on a choice of law. One can therefore assume that the applicable law is Belgian law, which implies that the [Seller] justly invokes the Decree of 2 August 2002, specifically addressing arrears of payment in commercial transactions.

Nevertheless, the [Seller] unjustly claims on the basis of this Decree a rate of 10.5% on the amount of the invoices which were issued during the first half of 2003, as the interest rate is set to be 10% according to article 5(2) of the subsequent Decree of 2 August 2003 (B.S., 14 February 2003). The proceedings are reopened to allow the [Seller] to calculate the total amount of interest on the sums in arrears.

....

FOR THESE REASONS,

The court holds, after deliberations, that in absentia, the claim is admissible and partially allowed.

36. Rechtbank van Koophandel Hasselt, February 25, 2004, A.R. 04/601, available at <http://cisgw3.law.pace.edu/cases/040225b2.html>.

Original language:     
Translation:
Dutch
Available

Court (translation):

The Vienna Sales Convention addresses the issues of damages and interest charged on sums in arrears in articles 74 and 78 respectively, but does not determine the applicable interest rate.

The [Seller] can only invoke the Belgian Decree of 2 August 2002 specifically addressing arrears of payment in commercial transactions, and the therein laid down provisions on damages and interest in so far the Belgian law is determined to be the lex contractus. This is apparently not the case here.

In any event, in that case the [Seller] would not be entitled to compensation for legal costs.

The claim of the [Seller] can be allowed, but on the basis of articles 74 and 78 of the Vienna Sales Convention.

SUMMARY

Cases involving Article 78: 36
Cases for which an English translation is available: 5
Cases for which only an abstract was available: 10
Cases for which neither translation nor abstract was available: 21


Pace Law School Institute of International Commercial Law - Last updated November 15, 2004
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