The claim relates to the unpaid purchase price emerging from a sale of unfinished roles of carpet between a Belgian seller and a Dutch buyer. The goods were collected from the seller’s place of business by a transport company appointed by the buyer and were accordingly delivered to another company seated in Belgium. The seller held that the parties had not agreed on a place of delivery and that, in the absence of a forum choice by the parties, the general rule in Art. 5(1) of the Council Regulation (EC) No. 44/2001 (on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters) applies. Hence, the seller sued the buyer for payment in the Rechtbank von Koophandel (Commercial Court of first instance) of Hasselt, which was the place of performance of the obligation in dispute (i.e. the place of payment). In doing so the seller referred to Art. 57 CISG. Furthermore, the seller invoked in relation to its claim Belgian law (i.e. the Act of 2 August 2002 implementing an EU Directive and specifically addressing arrears of payment in commercial transactions).
As to the question of jurisdiction, the Court pointed out that the EC Regulation No. 44/2001 (Art. 5) contains a specific rule on jurisdiction for the case of sale of goods, according to which the defendant can be sued in the State where the goods were delivered or should be delivered. It further held that parties did agree on a place of delivery, as the goods were taken from the buyer in Belgium, which implied that the parties had agreed on delivery “at factory”. Therefore, the Belgian courts had jurisdiction for the claim for payment. In deciding so, the Court did not make any reference to CISG (and specifically, it did not refer to Art. 57 CISG on place of payment).
As to merits, the Court held CISG applicable as both the buyer and the seller had their place of business in two contracting States. Since, however, Arts. 74 and 78 CISG grant in principle to the seller a right to interest on sums in arrears without determining the interest rate, it applied the rate of the law otherwise governing the contract (i.e. Belgian law). |