PIL instrument(s)

Case number and/or case name

N. NV v. R. GmbH - 03/3011 - Kh. Hasselt, 24 September 2003

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

23 September 2003

Appeal history

CJEU's case law cited by the court

Summary

The claim relates to an uncontested invoice for the rental of cranes and other tools on a construction site of the defendant in Lommel, Belgium. The invoice conditions of the claimant provide in French and Dutch that the courts of Hasselt have jurisdiction for disputes regarding the existence, the interpretation and the performance of the contracts and the collection of the invoices; and that the invoices are to be paid in cash “at the seat of our firm”. 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 It is unclear why the court does not examine the jurisdiction clause in favour of the courts of Hasselt under Article 23 Brussels I - possibly because the defendant is a German company and the clause is drawn up only in French or Dutch. There is other Belgian case law where the language of a jurisdiction clause is considered to be a validity requirement. The Court does examine the second part, the clause on the place of payment. The obligation to pay is the obligation in question within the meaning of Art. 5(1)(a) Brussels I. The Court correctly applies the Tessili method.