A French seller and a Belgian buyer concluded a contract for the sale of steel bars. After delivery the seller sent invoices which contained inter alia a penalty clause for the case of non performance by the buyer. As the invoices remained unpaid, the seller formally required that payment be due within a certain date. Only some time after expiry of that term did the buyer pay the purchase price. The seller commenced an action claiming damages according to the provisions set forth in the invoices sent to the buyer.
The Court held that the contract was governed by CISG since the Belgian private international law rules led to the application of the law of The Netherlands, a contracting State (Art. 1(1)(b) CISG).
The Court pointed out that the parties are free to exclude or derogate from CISG (Art. 6 CISG). The derogation needs not be express but it must clearly result from the common intention of the parties. 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. |