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CISG-online number
7068
Case name
Frigera N.V. v. D.E.C. S.r.l.
Jurisdiction
Belgium
Court
Hof van Cassatie van België/Cour de cassation de Belgique (Belgian Supreme Court)
Chamber
Eerste Kamer (First chamber)
Judges
Geert Jocqué (Presiding Judge), Michael Traest (Reporting judge), Bart Wylleman (Judge), Myriam Ghyselen (Judge), Sven Mosselmans (Judge), Elien Van Isterdael (Griffier)
Date of decision
06 June 2024
Case nr./docket nr.
C.23.0431.N
Claimant 1
Respondent 1
Case History
Seller 1
Buyer 1
Category of goods
8: Feeding stuff for animals (not including unmilled cereals)
Goods as per contract
Ham bones (as snacks for dogs)
Price
64'238.36 EUR (Euro)
CISG applicable
yes
CISG applied
yes
Key CISG provisions interpreted and applied
Art. 38(1); Art. 39(1)
Key CISG provisions interpreted
Art. 79(1)
CISG provisions also cited
Art. 7(1); Art. 7(2)
Non-provision-specific issues addressed
Burden of proof
European Case Law Identifier (ECLI)
ECLI:BE:CASS:2024:ARR.20240606.1N.8
Full text of decision 1
by Ulrich G. Schroeter
In the present appellate decision, the Belgian Supreme Court addresses the burden of proof under the Sales Convention, in particular regarding Arts. 38 and 39 CISG.
Insofar, the Supreme Court first refers to Arts. 7(1), 7(2) and 79(1) CISG and holds that although the Vienna Sales Convention does not prescribe a comprehensive regime of burden of proof, the question of burden of proof falls within the scope of the Convention and the Convention presupposes, as a principle of proof, that the person alleging something must prove it (para. 1 of the decision).
Applying this principle to Art. 38(1) and Art. 39(1) CISG, the Supreme Court furthermore rules that, in principle, it is for the buyer to prove the goods' non-conformity, while it is for the seller who invokes the lateness of the notification as a defence to prove the time when the buyer had or should have had knowledge of the non-conformity and, in the context thereof, its detectable nature. However, where the buyer has failed to inspect the goods in accordance with Art. 38 CISG, the burden is on him to prove that the defect or non-conformity was non-detectable at the time of delivery (para. 3 of the decision).