Belgium 3 October 2007 Commercial Court Hasselt [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/071003b1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Unavailable
CASE HISTORY: Unavailable
SELLER'S COUNTRY: German (plaintiff)
BUYER'S COUNTRY: Belgium (defendant)
GOODS INVOLVED: Clothes
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (French): Unilex Database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1244&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [first draft]
The CISG Translation Network
German Seller v. Belgian Buyer
Translation [*] by Georgia Nackley [**]
The request relates to an invoice dated February 22, 2006 concerning the delivery of clothes. The general terms of the sale are not produced here. In addition to the principle request, the [Seller] demands, on a provisional basis, an allowance of 10% of the invoice amount and a default interest rate of 11%, so this, falls under Articles 5 and 6 of the Belgian Law of August 2, 2002 on arrears in commercial transactions.
APPLICATION OF LAW
There is no challenge on which the claim is based except with regards to the legal basis for the compensation and interest.
The application of the Belgian Law of August 2, 2002, as cited above, is not applicable because this particular case is based on an international transaction and therefore the Vienna Convention of International Sales applies since Belgium and Germany are both parties to this convention and parties to this case.
If we have to apply domestic law to secure the interests of the parties, it would be German Domestic law and not Belgian Law applied, since it is the German seller who has made service. States of the European Union did not transpose the 2000/35 directive of June 29, 2000 regarding late payment on commercial transactions. Moreover, the interest rate under the law on late payment does not only indemnify the creditor after their short fall but also penalizes late payments and encourages debtors to pay on time. The second objective seems contrary to the international context in which falls the Vienna Convention (voy. Et comp. Avec H. VAN HOUTTE, J. ERAUW et P. WAUTELET (eds), Het Weens Koopverdrag, Anvers, Intersentia, 1997, p. 279).
The damages claimed may be granted, but they are granted on the basis of Article 74 of the Vienna Convention on International Sale of Goods. Therefore, there is no reason to consider the amount as provisional.
With regards to the interest, Article 78 of the Vienna Convention on International Sale of Goods applies.
However, Article 78 of this Convention does not determine the interest rate on the basis of which the interest must be calculated. We can refer to the doctrine that the law must receive an international solution and we cannot use lex contractus for the interest rate (in this case German law) (H. VAN HOUTTE, Vergoeding wegens laattijdige betaling, in H. VAN HOUTTE, J. ERAUW et P. WAUTELET (eds), Het Weens Koopverdrag, op. cit., p. 270). Under these conditions, the court used the interest rate of the marginal loan facility of the European Central Bank (ECB) or 5+2=7 (7% interest).
The interest claimed is reduced to 323.70 EUR.
(Plan in compliance with the reasons).
* All translations should be verified by crosschecking against the original text.
** Georgia Nackley is a J.D. candidate from Pace University School of Law.Go to Case Table of Contents