EUPillar B. v. M.N. - Kh. Kortrijk, 18 July 2002

Summary

The claimant sold live birds to the defendant in October-December 2000. The claimant handed the birds over to a carrier which delivered the bird at the domicile of the defendant in Barsac, France. The claimant now sues the defendant in payment of 7,282.49 EUR, to be increased with late payment interests. The defendant fails to enter an appearance, so that the court examines its jurisdiction of its own motion in conformity with Art. 26(1) Brussels I. In the case at hand, the claim relates to contract for the sale of goods. In the case of the sale of goods, Art. 5(1)(b), first indent, Brussels I confers jurisdiction on the courts of the place in a Member State where, “under the contract”, the goods were delivered or should have been delivered. Because of the introduction of this provision in the new Regulation, it is no longer necessary to determine the law applicable to the obligation in question. The parties did not have a written agreement and did not determine a place of delivery. It is disputed among legal authors how, in such a case, the place of delivery should be identified. There are three opposing views: - Some authors say that when the place of delivery cannot be determined under the contract, one should, pursuant to Art. 5(1)(c), fall back on Art. 5(1)(a). - Others say that the place of delivery should be determined according to the law applicable to the sales contract. - According to the last view, the place of delivery is not determined by the “legal delivery”, but the “factual delivery”. It follows from Art. 68 TEU that it is not possible for lower courts to refer a question for prejudicial ruling to the ECJ. The Court cannot accept that the notion “place of delivery” could cover anything else than the delivery in the legal sense of the word. The usual meaning of the term “delivery” is the performance of the main obligation of the seller. If, in the context of the Regulation, the term would mean something else, such as the place of business of the buyer or a third party where the goods were to be delivered, the Regulation would have said so. Moreover, it would be hard to distinguish the “legal delivery” from a “factual delivery” that has no other legal consequences. Finally, one fails to see how the place of delivery could be determined in cases where the parties did not provide for a place of delivery and the delivery has not yet taken place. Furthermore, in the case at hand, the application of Art. 5(1)(b) and 5(1)(a) respectively leads to the same result. The obligation in question is the seller’s obligation to pay the purchase price. The CISG is the law applicable to their agreement for the international sale of goods. The price is payable at the residence of the claimant. That means that the place of performance of the obligation in question is in Zwevegem-Sint-Denijs, in the district of Kortrijk. If Art. 5(1)(b) is applicable, the CISG also determines the place of delivery of the goods. Art. 31(a) CISG provides that the delivery takes place by handing the goods over to the first carrier for transmission to the buyer. The claimant shows that the goods were handed over to the carrier at his place of business in Sint-Denijs, so that here too the courts of Kortrijk have jurisdiction.