|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A French seller and a Belgian buyer entered into a contract for the sale of road sweepers. According to the contract the seller would assume all costs of repair for a period of two years. As per the INCOTERMS incorporated into the contract, delivery took place at the seller's place of business and the buyer paid the agreed sum. Later on, the vehicles began to show technical defects. The buyer informed the seller and in response the seller asked for the malfunctioning parts to be sent to him. Instead, the buyer repaired the vehicles himself and requested the seller to pay for the repairs, but the seller refused. The buyer then filed suit claiming the costs of repair as well as any other damage that had occurred.
The court of first instance dismissed the case for lack of jurisdiction according to Arts. 2 and 5(1) of the 1968 EC Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (hereinafter: Brussels Convention). In particular, in order to determine the place of delivery, the Court applied Art. 4(1) of the 1980 Rome Convention on the Law Applicable to Contractual Obligations, whereby the sales contract was found to be governed by the seller’s law, i.e. French law, and consequently by CISG, as part of French substantive law. However, since in the case at hand the INCOTERMS had been incorporated into the contract, the place of delivery had to be determined in accordance with them, i.e. since the goods had been delivered as per Incoterms at the seller's place of business, the place of delivery was in France. While confirming the lack of jurisdiction of the Belgian Courts, the Court of Appeal gave however a different reasoning. First of all, the Court found that the parties had chosen French law as the law governing the contract and, consequently, their contract was to be governed by CISG. Secondly, the Appellate Court excluded that in the case at hand, for the purpose of establishing jurisdiction, the place for delivery should be determined in accordance with INCOTERMS, given that INCOTERMS deal only with specific aspects of the sales contract (such as the transfer of costs and the transfer of risk), whereas the remaining aspects are regulated by the contract provisions or the applicable law. As a consequence, after affirming that in the case at hand the revelant obligation for the purpose of establishing jurisdiction was the delivery of goods conforming to the contract as foreseen by Art. 35 CISG, the Court of Appeal ascertained that such an obligation should have been performed at the seller's place of business in France. Nor had the buyer demonstrated that the contractual warranty had to be performed in Belgium. Therefore, Belgian Courts lacked international jurisdiction over the case. |