CISG CASE PRESENTATION

Belgium 5 October 1994 District Court Brussels (Calzaturificio Moreo v. Philmar Diffusion) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/941005b1.html]

Primary source(s) for case presentation: Case text

Case Table of Contents

• Case identification
• Case abstract
• 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: 19941005 (5 October 1994)

JURISDICTION: Belgium

TRIBUNAL: Tribunal [District Court] commercial de Bruxelles Brussel

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: R.G. 1.205/93

CASE NAME: Calzaturificio Moreo Junior S.r.l v. S.P.R. L.U. Philmar Diffusion

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Belgium (defendant)

GOODS INVOLVED: Shoes

Case abstract

Prepared by Camilla Andersen for commentary on notice issues under Article 39(1)

"The notice in question was given to the seller nine months after delivery of shoes, and not surprisingly the Court found this unsatisfactory as the non-conformity should have been discovered and communicated sooner. The Court did not distinguish between the time-frames in Articles 38 and 39, and it is hard to glean what is considered reasonable time, as the Court did not say when the non-conformity ought to have been discovered, nor whan notice should have been given." Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 134 nn.254-255.

Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(b)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 39 ; 59 ; 78 [Also cited: Article 90 ]

Classification of issues using UNCITRAL classification code numbers:

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];

59A [Payment due at time fixed or determined by contract or Convention];

78B [Interest on delay in receiving price: rate of interest]

Descriptors: Lack of conformity notice, timeliness ; Price ; Interest

Editorial remarks

• Unavailable

Citations to case abstracts, texts, and commentaries

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=176&step=Abstract>

Italian: Diritto del Commercio Internazionale (1997) 727-728 No. 137

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-Belgium database of Katholieke Universiteit Leuven <http://www.law.kuleuven.ac.be/ipr/eng/cases/1994-10-05.html>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=176&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Dutch: Erauw, [1998] Tijdschrift voor Privaatrecht (TvP 35) 1369 [1519 No. 260]

English: Ferrari, International Legal Forum (4/1998) 138-225 [238 n.918 (notice of lack of conformity)]; Petrochilos, Arbitration Conflict of Laws Rules and the CISG (1999) n.87; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); 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]

Finnish: Huber/Sundström, Defensor Legis (1997) 747 n.2

Case text (English translation) [second draft]

Queen Mary Case Translation Programme

[PLEADINGS]

Calzaturificio Moreo Junior [seller] of Italy seeks to have the court direct Philmar Diffusion Company [buyer] of Belgium to pay to [seller] 6,423,900 Italian Liras [It£] including interest at the rate of 14.5% per year.

That [buyer] has entered numerous pleas and a counterclaim to direct the [seller] to make an indemnity payment of 100,000 Francs.

[FACTS]

[Buyer] ordered 149 pairs of shoes from [seller] on 14 April 1992. [Seller] delivered the goods on 12 May 1992 and invoiced the [buyer] for 6,705,300 It£ which was reduced to 6,423,900 It£ since only 147 pairs of shoes were delivered (credit letter of 281,400 It£).

[Buyer] did not protest this invoice, nor did [buyer] pay it, notwithstanding reminders sent by [seller] on 8 October and 5 November 1992. On 3 December 1992, [buyer]'s employee wrote to [seller]:

[Seller] did not obtain this payment; notwithstanding the promise of payment by return mail. Seller commenced legal proceedings on 13 January 1993.

[Seller] learned on 11 February 1993 that [buyer] complained of the quality of ten pairs of shoes, at the total estimated price of 463,000 It£.

[...]

[APPLICABLE LAW]

The parties agree that the Vienna Convention of 11 April 1980 [CISG] is applicable to the sales transaction.

That [buyer] sees a conflict between the dispositions of Article 21 of the [Rome Convention of 19 June 1980] and those in Article 90 of the [CISG] and seeks to have it resolved by the Court of Justice of the European Community. It is the opinion of the [buyer] that the dispositions of the Rome Convention applied immediately in Belgium by the Law of 14 July 1987, even though that Convention was not yet in force (entered in forced: 1 April 1991). However, the Rome Convention does not always affect any other Convention (article 21) on the international sale of movable property, and conflict of laws issues are regulated by the Hague Convention of 15 June 1955. This Convention declares applicable the law of the seller's country (article 3), which is in this case Italian law.

The CISG is in force in Italy; that is the reason why both parties agreed on the application of this Convention (see article 1(1)(b) CISG).

The CISG also recites in its Article 90 the principle that it does not prevail over any other Convention with provisions concerning matters governed by the CISG; and that any conflict between Convention on the applicable law, like the Rome Convention, and the Convention on uniform material law, like CISG is not possible.

[REASONING OF THE COURT]

The [seller]'s claim is supported by Articles 59 and 78 CISG: Article 59 states that buyer must pay the price on the date stated in the contract; Article 78 anticipates that the debtor in delay will pay interest.

Article 39 CISG states that buyer loses the right to rely on a lack of conformity, if he does not inform the seller of the nature of the fault within a reasonable time.

[Buyer]'s letter of 3 December 1992 was not responsive to the requirements of Article 39. Moreover, the [buyer] did not specify the nature of the lack of conformity on 11 February [1993], nine months after the delivery of goods. By that time, the reasonable time for doing so had passed. The [buyer] has therefore forfeited the right to rely on the lack of conformity.

[...]

[RULING OF THE COURT]

For this reasons, the court:

• Declares the [seller]'s major claim founded and accepted;

• Declares the [buyer]'s incidental claim accepted but not founded;

• Directs the [buyer] to pay to the [seller] 6,889,633 It£, including interest at the rate of 14.5% per year on 6,423,900 It£ since 13 Jannuary 1993;

• Directs the [buyer] to pay expenses and costs including the procedure compensation, and empowers the temporary execution of judgment notwithstanding the appeal.

[...]

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Italy is referred to as [seller] and the Defendant of Belgium is referred to as [buyer]. Amounts in Italian currency (Italian Lire) are indicated as [It£].

** Katarina Kunce Kern, a law graduate of the University of Zagreb, is a member of the Bar of Croatia who has worked with French diplomats in Croatia.