A trading stable in the United Arab Emirates (buyer) bought an embryo in early 2020 during an auction organized by a Belgian auction house in Sharjah, the United Arab Emirates. The buyer and the auction house are both clients of Schelstraete. The embryo seller resides in Great Britain.
After the auction house has sent the buyer an invoice, the seller has repeatedly inquired the auction house about the payment of the invoice. The auction house informed the seller that they have contacted the buyer and that it will soon pay the purchase price of the Embryo to the auction house. Nevertheless, the seller informed the auction house in early March 2020 that the agreement has been terminated. Shortly afterwards, the buyer paid the purchase price to the auction house. However, the seller continued to refuse to deliver the surrogate mare (including the embryo) to the buyer as he believes that the purchase agreement has been legally terminated.
To prevent the foal from disappearing from the view of the buyer and the auction house or from being sold to someone else, the buyer and the auction house have seized the newborn foal. The seller, subsequently, initiated interlocutory proceedings in which he claimed, among other things, the lifting of the seizure. Now that he had legally terminated the auction agreement, he would be the owner of the foal born from the embryo and the seizure would be wrongful.
The judge has ruled that it is sufficiently plausible that the parties have made a choice of law for the Belgian law. The termination invoked by the seller must therefore be assessed under the Belgian law. In that context, the judge has ruled that the auction conditions do not include a payment term within which the auction house should pay the purchase price received from the buyer to the seller. The seller has also not sent a final notice of default to the auction house. In view of this, it has become insufficiently plausible that the seller has legally terminated the auction agreement. According to the court, there is therefore no room for the seizure to be lifted. The security demanded by the seller, in case the seizure would not be lifted, was also rejected, as the seller has not proven that and if so, how much damage he would suffer as a result of the seizure.
The client was represented by Joëlle Bongers.