EUPillar J. v F. - AR 03/1493 - Kh. Hasselt, 27 May 2003

Summary

The claim relates to the unpaid purchase price of uncontested invoices for sales by a Belgian claimant to a French seller. The general invoice conditions provide in Dutch only that exclusive jurisdiction is conferred to the courts of Hasselt. The claimant relies both on Art. 23(1)(b) of the Brussels I Regulation and on Art. 5(1). The car parts were delivered and picked up by the defendant in Herk-de-Stad, Belgium. The Court considers it cannot apply the prorogation clause in the general conditions of the seller since it hasn’t been proven that the defendant knows and understands Dutch. Art. 31 CISG stipulates that “If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: (a) if the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer or (c) in other cases - in placing the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract.” The claimant alleges that the defendant picked up the goods. Remarkably, the invoices include transportation costs – but do not mention any Incoterms. In any case, under both definitions, the place of delivery was in Belgium. The courts of Belgium have jurisdiction pursuant to Art. 5(1)(b). Short critique 1. This decision is in line with other Belgian case law which considers the language of a choice of court clause to be a validity requirement under Brussels I. 2. The Court wrongfully refers to the CISG. The place of delivery is a purely factual criterion, there is no need to apply the Tessili method and refer to the applicable law.