تکلیف اختیاری ، رای برای دانشجویان علاقمند

Abstract: Date: 05.10.1994 Country: Belgium Number: R.G./1.205/93 Court: Tribunal de Commerce de Bruxelles, 7ème ch. Parties: Calzaturificio Moreo Junior s.r.l. v. S.P.R. L.U. Philmar Diff. Date: 10.05.2004 Country: Belgium Number: 2003/AR/2026 Court: Hof van Hoger Beroep, Gent Parties: N.V. Maes Roger, N.V. Kapa Reynolds A Belgian buyer and a French seller entered into a contract for the sale of plastic film. After the buyer discovered that the goods received were defective, it terminated the contract. The seller then sued the buyer claiming the remainder of the purchase price. The buyer counterclaimed seeking to obtain recovery of the price and damages. The Court of First Instance ruled in favor of the seller. The buyer appealed. The Appellate Court overturned the lower Court’s decision ordering the seller to pay damages. The Court first of all found that CISG applied because the rules of private international law led to the application of the law of France, a Contracting State (Art. 1(1)(b)CISG). Basing itself on a judicial appraiser’s report, the Court stated that the goods delivered were not fit for their ordinary use (Art. 35(2)(a) CISG). Moreover, the buyer had not forfeited its right to rely on the lack of conformity since it had given timely notice thereof to the seller (Art. 39 CISG). The Court also found that the seller had not made any attempt to remedy its breach of the contractual obligations as required by Art. 48(1) CISG. Indeed, after being notified of the defects, the seller merely contested the non-conformity of the goods. Consequently, the Court held that the buyer was entitled to declare the contract terminated pursuant to Art. 49(1)(a) CISG. Finally, the Court found that the buyer was entitled to recover foreseeable damages under Art. 74 CISG. However, in the Court’s view, the buyer had failed to take reasonable measures to mitigate damages as required by Art. 77 CISG, mainly because it did not conclude substitute transactions in order to replace the defective goods delivered by the seller. As a result, the amount of the damages awarded was reduced accordingly. Abstract: Date: 05.10.1994 Country: Belgium Number: R.G./1.205/93 Court: Tribunal de Commerce de Bruxelles, 7ème ch. Parties: Calzaturificio Moreo Junior s.r.l. v. S.P.R. L.U. Philmar Diff. An Italian seller and a Belgian buyer concluded a contract for the sale of shoes. After the goods were delivered, the buyer refused to pay the purchase price and the seller commenced action claiming payment of the price and interest at the rate of 14.5% per year. At trial, the buyer alleged non conformity of the goods. The Court held that the contract was governed by CISG. Although Belgium had not yet ratified CISG, the Belgian private international law rules (in this case the Hague Convention of 15 June 1955 on the law applicable to international sale of goods) led to the application of the law of Italy, a contracting State (Art. 1(1)(b) CISG). Finding for the seller, the Court stated that in accordance with Art. 59 CISG, the buyer must pay the price on the date fixed by the contract. In addition, the Court granted the seller the right to interest at the rate of 14.5% per year, as requested by the seller, without further specifying the reason for such interest rate and without making any reference to Art. 78 CISG. The buyer had lost the right to rely on a lack of conformity of the goods, as it failed to give notice of non-conformity within a reasonable time. In this respect the Court held that a notice, in which the buyer specifies the nature of the defects, given nine months after delivery is not within a reasonable time as required by Art. 39 CISG. Abstract: Date:16.01.2009 Country: Netherlands Number: 197586 / KG ZA 08-659 Court: Rechtbank Breda Parties: Person of Greece v. Ed Fruit & Vegatables B.V.

A Greek seller and a Dutch buyer concluded an oral contract for the sale of watermelons. Under the contract, the carriage of the goods was to take place for the account and at the risk of the buyer. After delivery of the goods, the buyer left some of the invoices unpaid. As a result, the seller sued the buyer for payment of the price, but the latter denied its liability, arguing that the watermelons were of inferior quality. The Court held that the contract was governed by CISG as the parties had their places of business in Contracting States (Art. 1(1)(a) CISG) and the contract involved movable goods. In so doing, the Court also found it irrelevant that the parties had entered into an oral agreement, as a contract does not need to be concluded in, or evidenced by, writing in order to be governed by CISG (Art. 11 CISG). As to the merits, the Court ruled that, since the contract at hand did not involve the carriage of the goods, the seller was only liable for the defects in the watermelons that already existed at the time of shipment, such a time being the moment on which the risk passed to the buyer (Art. 35(1) CISG and Art. 36(1) CISG). This meant that, pursuant to Art. 38 CISG, the buyer was obliged to examine the watermelons before transportation to the Netherlands and that the period within with the seller should have been given notice of lack of conformity had started to run from the time when the inspection could have been carried out and the lack of conformity discovered, that is before carriage of the goods. The Court also rejected the buyer's argument that a large batch of watermelons had been delivered at different times in different places, or delivered elsewhere, and that in some cases an inspection had taken place at the final destination as, according to Art. 38(2) CISG, inspection can be postponed until after delivery at the place of destination only in those cases in which the contract involves carriage of the goods. Moreover, the Court found that the perishable nature of the goods and other relevant circumstances of the case required a short period in order for the lack of conformity to be notified (Art. 39 CISG). Although the buyer argued that it had orally complained to the seller about the defects as soon as they had appeared, it failed to provide adequate proof thereof. As a result, as the buyer did not invoke any other provisions that might have prevented the seller's reliance on Art. 39 CISG or would have given the buyer the possibility to reduce the price or claim damages pursuant to Art. 44 CISG, the Court concluded that - even if non-conformity had occurred - the buyer had lost the right to avail itself of the related remedies. Accordingly, the buyer was sentenced to pay the amounts in arrears, as well as legal interest on those sums (Art. 78 CISG) at the rate calculated on the basis of the otherwise applicable law (i.e., Greek law). Finally, the seller's claim for reimbursement of the extrajudicial collection costs was recognized pursuant to Art. 74 CISG.