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| A Belgian seller and a German buyer concluded a contract for the sale of a stock of poultry. The seller's standard terms, which were printed on the back of its invoices and referred to on the other side, contained a forum selection clause in favor of Belgian Courts, as well as a choice-of-law clause in favor of Belgian law. After delivery, the poultry was seized and destroyed by order of the German authorities, which suspected it to be contaminated with dioxin. A dispute arose when the buyer left part of the purchase price unpaid.
The first istance decision was in favor of the seller. The buyer appealed, but the Court of Appeal confirmed the lower Court's decision. First of all, the Court of Appeal found that the Court of first instance had correctly declared to have jurisdiction over the case. In international trade a forum selection clause has to be concluded “in a form which accords with practice in that trade or commerce of which the parties are or ought to have been aware” (Art. 17 Brussels Convention of 1968). The Court held that, as in the case at hand the buyer had not objected at any time to the seller’s standard terms, of which it should have been aware, the forum selection clause contained therein had to be considered valid. Consequently, the same was true as to the choice-of-law clause provided for by the seller’s standard terms. Since it referred to the law of a Contracting State (i.e., Belgian law), the Court found that the first instance decision had correctly applied CISG to the merits of the dispute. In any case, CISG would have been applicable according to its Art. 1 (1)(a), as the parties had their place of business in two different contracting States. As to merits, the Court held that the buyer had lost its right to rely on lack of conformity, as it did not give notice of the defects to the seller neither within the short time-limit fixed by the seller’s standard terms, nor within the reasonable time set out in Art. 39 CISG. All the more so, since the buyer paid without objection the partial amounts after delivery and made a proposal to the seller aimed at concluding a settlement as to the payment of the outstanding price (so as to facilitate the resumption of the business relationship between them). |