EUPillar N NV v I GmbH - AR 03/0196 - Kh. Hasselt, 22 January 2003

Summary

The claim relates to uncontested invoices for the lease of cranes and other tools on the construction sites of the defendant in Belgium. The general invoicing terms and conditions of the claimant provide in French and Dutch that the courts of the district of Hasselt, Belgium are competent for disputes relating to the existence, interpretation and application of the contracts and the collecting of invoices; and that those invoices are to be paid in cash “at the seat of our firm”. The Court does not apply Art. 23 since it does not appear from the file that the defendant knows and understands Dutch or French. The Court applies Art. 5(1)(a) Brussels I Regulation. To determine the place of performance of the obligation in question (i.e. the obligation to pay the rental price), the Court must determine the law applicable to the contract. In this case that law can be found by applying the European Contracts Convention. The Court finds that Belgian law is applicable (characteristic obligation, cf. Art. 4(2) European Contracts Convention). According to Belgian law, the general invoice conditions can reflect the contents of an agreement between parties. The Court decides that it cannot take into account the general conditions of the claimant since it has not been proven that the defendant knows and understands Dutch or French. However, on the front side of the invoice only bank accounts with Belgian banks are mentioned. Under Belgian law it can therefore be presumed that the recipient of the invoice agreed to pay in Belgium. The parties agreed on the place of performance of the obligation in question. The courts of Belgium have jurisdiction. Short critique: According to the court, there is a language requirement for the validity of choice of court clauses under Art. 23. This is in line with other Belgian case law. (See report for more information) The court correctly applies the Tessili method.