Belgian law always applies to each transaction between ADIN and a co-contracting party.
For the sake of completeness, in accordance with Art. 78 of the Belgian Trade Practices Law and Art. 4 of the EC Directive 97/7 of 20 May 1997 (O.J. 1997, no. L144/19) the information given earlier, in the present case, is repeated here :
N.V. ADIN, with registered office at 2018 Antwerp, Vestingstraat 16, recorded in the Commercial Register of Antwerp under 249.007, having as VAT-no. BE 428.092.276.
With respect to that reference is made to http://www.antiquejewel.com and the repetition of these data on the certificate attached when the product is shipped.
The price was clearly indicated in the on-line shop at the website http://www.antiquejewel.com or in the e-mail of the offer from ADIN to the co-contracting party after the on-line auction. This is confirmed in writing upon delivery. The price includes all taxes which are levied in Belgium on this transaction, including VAT, as well as the shipping costs. The taxes levied in the country where the product must be delivered, such as import taxes, are not included in the price. These shall be borne by the co-contracting party.
When the product must be sent back, in accordance with the applicable right of renunciation, those delivery costs are borne by the co-contracting party.
The sale only takes place when the co-contracting party or his credit card company has paid an irrevocable security deposit.
IF THE SECURITY DEPOSIT IS NOT PAID, THE SALES CONTRACT DOES NOT COME INTO BEING. IN THAT EVENT, NEITHER ADIN NOR THE CO-CONTRACTING PARTY HAS BOUND ITSELF THEREBY.
This security deposit consists of a sum of money in the amount of the sale price. It is provided via a guaranteed cheque, or via an authorisation by the credit card company of the co-contracting party, with reference to the credit card number communicated by the co-contracting party. The security deposit is not regarded as payment, even if the account of the co-contracting party is debited as a result of the provision of the security deposit. In the event that the co-contracting party exercises his right of renunciation and sends back the identical products intact to ADIN with the same transporter and insurance as was the case for the delivery, the security deposit will be immediately (after the usual verifications) paid back to the co-contracting party once it has been returned. In the event of renunciation without proper return of the delivered product, however, the security deposit will be retained by ADIN as contractual compensation.
These conditions can be completed by mutual consent with one or more separate agreements, (eg. a Lay Away Agreement, for the reservation of the product, as well as the payment of the security deposit in instalments, during an agreed period of time.) In which case a supplementary agreement is an attached annexe of the written confirmation of the sale.
Without exercise of the right of renunciation, the security deposit may be irrevocably applied as a form of payment. ADIN undertakes to cash the cheque or use the credit card number, and thus to apply the amount of the security deposit as payment, only after the renunciation period described in Art. 7 has expired.
As long as there is no implementing decree, in accordance with art. 80, § 3 last paragraph of the Belgian Trade Practices Law, there exists a right of renunciation, worded as follows:
The consumer is entitled to inform the seller that he renounces the purchase, without payment of a penalty or any obligation to give a reason, within fourteen (14) days from the day following the delivery of the product or the conclusion of the service agreement" (Art. 47 of the Belgian Trade Practices Law of April 6, 2010).
This foregoing right of renouncement is only available to the original buyer and may not be assigned to or recieved upon by any subsequent transferee of the property sold.
The product is sent via UPS, FEDEX or some other chosen transporter. It must be sent back, insured, in its original Adin packing via the same transporter, in the same manner as it was supplied.
No extra costs are charged beyond those mentioned in Art. 2.3.
The order, the possible bid increase, the shipping and the respect of the renunciation period never takes more than one month. The period of validity for the entire transaction is therefore defined as one month.
The right of renunciation must be exercised in writing, by registered letter.
Both parties take cognisance of the fact that Belgian law requires written proof of offer and acceptance if an amount higher than 15,000 BEF is involved. In accordance with a proposed directive of the European Commission concerning certain legal aspects of electronic commerce in the third market, Com. 1998/586, O.J., C. 1998, issue 30/4, the Belgian State must ensure that the law permits contracts to be concluded electronically. With a view to this future obligation, the contracting parties agree that the written proof of the terms of the sales contract may be furnished by the following elements:
The delivered products remain the property of ADIN until expiry of the renunciation period mentioned in Art. 2.6 and the authorised conversion of the provided security deposit into payment. In the meantime, the co-contracting party may under no circumstances alienate, encumber or in any other way burden the delivered products. Otherwise, the latter is guilty of abuse of trust, as provided in Art. 491 of the Belgian Criminal Code :
"Any person who, to the disadvantage of another, fraudulently embezzles or dissipates goods, monies, merchandise, notes, receipts, writings of any kind, which entail or produce an obligation or a release of debt or which are handed over under an obligation to give them back or to use or apply them for a specific purpose, is punishable by a term of imprisonment ranging from one month to five years, and by a fine ranging from 26 francs to 500 francs. Such person may, moreover, be condemned to a deprivation of certain rights."
The irrevocable security deposit specified in Art. 2.5 can take the form of electronic money, a cheque, or payment by credit card. When the conversion from security deposit to payment of the price is directly or indirectly delayed due to the action of the co-contracting party, a late-payment interest of 1 % per month will be due ipso jure and without notice of default, and the owed price will be increased by a flat-rate penalty clause of 10 %, with a minimum of 25 EURO. In the event of payment by credit card, ADIN always requests the sending, via scanner or telefax, of a front-back copy of the credit card. The credit card company will then be asked to authorise the transaction. This system will be maintained even in the event of possible on-line authorisation, considering the amount of time consumed for the related cryptographic techniques. The general terms of the largest credit card companies (VISA, MASTERCARD, AMERICAN EXPRESS) advise against accepting orders via the Internet, notwithstanding the SET (Secure Electronic Transaction) and SSL (Secure Sockets Layer) systems which have been developed. Thus the necessity of sending the credit card - front and back - via scanner or telefax, and the subsequent request for authorisation from ADIN to the credit card company. However, this can also lead to the blocking of payment by the co-contracting party, which is why the above-mentioned late-payment interest and penalty clause are provided for.
The products sent by ADIN are insured, and one can monitor where the shipped goods are located via the Internet. When the co-contracting party decides to send back the property, in accordance with (inter alia) the above-mentioned right of renunciation, this must be done via the same transporter as was the case for the delivery, with the costs borne by the co-contracting party, including the same insurance as was taken out by ADIN for the sending of the merchandise.
After the period mentioned in Art. 2.6, the delivery is deemed to be in conformity with the order. No written complaint concerning defective delivery can be accepted after this period.
On the part of ADIN, ADIN is not responsible for delays caused by the transporter. In the event of defective or late delivery by ADIN, the co-contracting party is entitled to compensation. In the absence of proof, the co-contracting party can also demand a flat-rate contractual damage of 10 %, with a minimum of 25 EURO. However, ADIN is entitled to appoint an expert in the country of the co-contracting party to analyse the defective delivery. This appointment must take place within 15 days after the written complaint. The co-contracting party irrevocably undertakes to allow the defective good to be assessed by the thus-appointed expert. This expert must notify his findings to the co-contracting party in the form of a preliminary report. In the absence of a challenge to this technical expert within 8 days after the preliminary report is sent, the expert analysis shall be accepted as an amicably conducted expert examination with the participation of both parties.
Considering the obligations which ADIN has assumed in the judicial district of Antwerp, and in application of Art. 624, 2° Jud. Code, the Justice of the Peace Court of the 1st canton in Antwerp, as well as the Court of First Instance or the Commercial Court of Antwerp shall have jurisdiction over any dispute concerning the existence or execution of an agreement between ADIN and a co-contracting party. Should it prove impossible to arrive at an amicably conducted expert examination with the participation of both parties as mentioned in Art. 8, both parties acknowledge the authority of the President in the Court of First Instance of Antwerp, or the Commercial Court of Antwerp, to appoint a court expert in accordance with Art. 585 Jud. Code for the determination of the defective delivery, as mentioned in Art. 8.