THE COMMISSION TO FADEX ON 14 DECEMBER 1979 . AFTER THE WORK HAD BEEN COMPLETED THE COMMISSION REFUSED TO PAY THE INVOICE ON THE GROUND THAT THE STUDIO FLOOR WAS NOT SUFFICIENTLY LEVEL WITH THE RESULT THAT IT WAS IMPOSSIBLE TO USE TELEVISION CAMERAS IN THE STUDIO NORMALLY .
4 THE COURT MUST THEREFORE DETERMINE WHETHER THE COMMISSION WAS JUSTIFIED IN REFUSING TO PAY THE ABOVEMENTIONED INVOICE . IT MUST ALSO DECIDE WHETHER THE APPLICANT ' S CLAIM THAT IT IS ENTITLED TO APPLY A PENALTY CLAUSE LAID DOWN IN ITS GENERAL CONDITIONS OF SALE TO THE DISPUTED CONTRACT IS WELL-FOUNDED .
THE CLAIM FOR BFR 150 480 FOR THE WORK DONE
5 IN THIS CONNECTION IT IS NECESSARY TO DETERMINE WHETHER THE APPLICANT WAS UNDER A CONTRACTUAL OBLIGATION EITHER TO LEVEL THE FLOOR PRIOR TO LAYING THE COVERING , OR , AT LEAST , TO NOTE THAT THE SURFACE WAS NOT SUFFICIENTLY LEVEL AND TO WARN THE COMMISSION OF THAT FACT BEFORE COMMENCING THE WORK .
6 THE APPLICANT MAINTAINS THAT IT IS NOT SPECIALIZED IN LAYING FLOOR-COVERINGS FOR TELEVISION STUDIOS AND THAT UNDER THE TERMS OF THE CONTRACT IT WAS REQUIRED ONLY TO SUPPLY AND TO LAY A COVERING SUFFICIENTLY RESISTANT AND SMOOTH TO BEAR THE WEIGHT OF TELEVISION CAMERAS AND TO MAKE IT POSSIBLE FOR SUCH CAMERAS TO BE MOVED WITH SUFFICIENT EASE . IN PARTICULAR THE CONTRACT MAKES NO REFERENCE TO THE REQUIREMENT THAT THE FLOOR SHOULD BE PERFECTLY LEVEL ; THE INEQUALITY IN THE LEVEL OF THE FLOOR , APPROXIMATELY 2 MM PER METRE , OCCURS ONLY IN THE LAST THIRD OF THE STUDIO AND WAS NOT VISIBLE WHEN THE COVERING WAS LAID . ON THE OTHER HAND , THE COMMISSION HAD EXPRESSLY UNDERTAKEN TO REMOVE THE EXISTING COVERING AND THEREFORE TO PREPARE IT FOR THE LAYING OF THE NEW COVERING .
7 THE COMMISSION , FOR ITS PART , STATES THAT FADEX WAS CHOSEN ON THE BASIS OF THE REFERENCES IT SUPPLIED , IN PARTICULAR WITH REGARD TO WORK WHICH IT HAD CARRIED OUT FOR RADIO-TELEVISION BELGE IN BRUSSELS . IT CONTENDS THAT THE UNDERTAKING WAS FULLY AWARE OF THE PURPOSE OF THE WORK COMMISSIONED , NAMELY THE COMPLETE RESURFACING OF THE FLOOR OF A TELEVISION STUDIO IN ORDER TO MAKE IT SUITABLE FOR THE USE OF NEW , HEAVY , MOBILE CAMERAS . FADEX MUST HAVE KNOWN THAT IT WAS INDISPENSABLE FOR THE PROPER FUNCTIONING OF THOSE CAMERAS FOR THE SURFACE TO BE PERFECTLY LEVEL . DESPITE THAT , THE UNDERTAKING MERELY LAID THE DIFFERENT LAYERS OF COVERING WITHOUT FIRST HAVING ASCERTAINED THE STATE OF THE CONCRETE BASE . IN THE COMMISSION ' S VIEW THAT CONSTITUTES ' SERIOUS NEGLIGENCE ' . IN ADDITION , THE COMMISSION MAINTAINS THAT IN CONNECTION WITH A CONTRACT FOR SPECIALIST WORK SUCH AS THAT WHICH LIES AT THE ORIGIN OF THIS DISPUTE THE UNDERTAKING IS BOUND TO TAKE INTO CONSIDERATION THE END PURPOSE OF THE WORK AND THUS TO WARN HIS CLIENT OF ANY DEFECTS WHICH MIGHT