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CISG CASE PRESENTATION

Spain 16 November 2000 Appellate Court Alicante (BSC Footwear Supplies v. Brumby St) (Shoes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/001116s4.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20001116 (16 November 2000)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial [Appellate Court] de Alicante

JUDGE(S): José Manuel Valero Diez

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: BSC Footwear Supplies v. Brumby St.

CASE HISTORY: 1st instance Sentencia JPL de Elche 12 April 2000 [affirmed]

SELLER'S COUNTRY: Spain (plaintiff)

BUYER'S COUNTRY: United Kingdom (defendant)

GOODS INVOLVED: Shoes


Case abstract

SPAIN: Audiencia Provincial de Alicante 16 November 2000

Case law on UNCITRAL texts (CLOUT) abstract no. 483

Reproduced with permission of UNCITRAL

Abstract prepared by Maria del Pilar Perales Viscasillas, National Correspondent

The buyer, a British firm, entered into a contract to purchase shoes from a Spanish seller. In a dispute over the contract, the Spanish court applied Spanish domestic sales law and found in favour of the seller. The buyer appealed, asserting that the Court should have applied the CISG, since the matter related to an international sale of goods.

The Court of Appeals affirmed the decision, concluding that the parties had tacitly excluded the application of CISG under article 6. Relevant factors included: (1) a term in the standard purchase contract which explicitly stated that the contract should be interpreted in accordance with English law (which, in the Court's view, was tantamount to excluding international law); (2) the parties submitted their petitions, statements of defence, and counterclaims in accordance with Spanish domestic law, rather than the CISG; and (3) the buyer did not raise the issue of applicability of the CISG until the time of appeal.

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Classification of issues present

APPLICATION OF CISG: No [Court held CISG not applicable due to intent of parties (Art. 6.)

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 6

Classification of issues using UNCITRAL classification code numbers:

6A1 [Implied exclusion of Convention]

Descriptors: Choice of law

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=796&step=Abstract>

Spanish: CISG-Spain and Latin America database <http://www.uc3m.es/cisg/respan13.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America database <http://www.uc3m.es/cisg/sespan13.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=796&step=FullText>; Aranzadi Civil (March 2001) 2413, pp. 1315-1317

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Spanish: Beatriz Campuzano Diaz, La exclusion del Convenio de Viena de 11 de abril de 1980 sobre compraventa internacional de mercaderías en virtud de la autonomía de los contratantes [Exclusion of the CISG by virtue of the autonomy of the parties], Revista de Derecho patrimonial (2001-2) núm 7, pp. 151-156

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Audiencia Provincial de Alicante 16 November 2000

Translation [*] by Patricia Rincón Martín [**]
J & A Garrigues

Source: Aranzadi Jurisprudence Database (RA 2413/2000)

Summary: Brumby, SL. [seller] filed for a declaratory judgment against BSC Footwear Supplies LTD [buyer] claiming a certain amount. The Court, on 12 April 2000, agreed with [seller] and required the [buyer] to pay 26,388,816 pesetas (158,599.98 Euros) plus legal interest since the date of filing. [Buyer] filed for appeal which was dismissed by Section 7 of the Audiencia Provincial de Alicante.

COURT DECISION

City of Elche, 16 November 2000.

Section 7 of the Audiencia Provincial de Alicante, located in Elche and formed by the magistrates [names omitted], has acknowledged claim number 395/1997--declaratory judgment heard by the Court of First Instance of Elche--as a result of the appeal made by the respondent [buyer] BSC Footwear Supplies LTD. Said party was represented by the Procurator [Translator's comments: The figure of the Procurator is characteristic of the Spanish judicial system. The Procurator does not give legal advice, but is the legal liaison between the court and the parties] Mr. F.M. and directed by Mr. F.J. Brumby, the appealed party, was represented by Mr. M.H. and directed by S.G.

THE FACTS

     First. The Court of First Instance of Elche in the mentioned claim numbered 395/1997, issued a judgment on 12 April 2000, which declared: "Having ruled that the claim filed by Procurator Mr. M.H., in representation of [seller] which transferred its credit to J.C. Export SL, against [buyer] was founded, we require the [buyer] to pay 26,388,816 pesetas (158,599.98 Euros) plus interest from the date of filing and all legal costs.

     Second. Against this judgment, the [buyer] appealed in due time and form, being admitted by this Court and numbered 365/2000. The appealing party asked for the reversal of the prior judgment which was upheld by the appealed party. 13 November 2000 was fixed as the date for deliberation and vote.

      Third. This legal dispute has been processed respecting all rules and formalities.

Magistrate José Manuel Valero Díez will present the case at hand.

LEGAL REASONING

      First. [Buyer] disputes the applicable law in the present case. [Buyer] alleges that because there is an international sale of goods it should be subject to the Vienna Convention on Contracts for the International Sale of Goods (CISG), and that the Court of First Instance has disregarded the CISG completely, despite the principle "iura novit curia", since the Convention is part of the domestic law.

As stated in the Supreme Court decision of 22 May 1989, "on the basis of the principle of solidarity and interdependence within international relationships, a new conception of the notion of sovereignty has been recognized and formed based upon the integration and observance of supranational principles and rules. That is, in fact, the justifying and basic argument for Chapter Third of Title Third of the Constitution of Spain (articles 93 to 96), where international Treaties and Convention are recognized and incorporated into the domestic law, once they have been validly adopted and published in their entirety in the Boletín Oficial del Estado [Translator's comment: The Boletín Oficial del Estado is the Spanish Official Diary where all laws and rules must be published in order to be valid] (articles 96.1 of the Constitution and 1.5 of the Civil Code)." In July, 1990, Spain adopted the CISG, which was published in the Boletín Oficial del Estado of 30 January 1991. As distinguished from the provision in article 5 of the Hague Convention of 1964 (which contains a Uniform Law for the International Sale of goods under which each State may notify the depositary Government (the Netherlands) that it would only apply the uniform law to contracts in which the signing parties had designated this law as the applicable law to the contract), the Vienna Convention is always applicable, in principle, if the international sale is within the scope defined in articles 1 to 6.

Given that the international sale of the present case may be ruled by the CISG, according to article [1(1)(b)], it must be decided if it is indeed applicable. Article 6 establishes that "The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions." This article clearly establishes the non-mandatory nature of the rules contained therein. In other words, it establishes the ruling principle of the autonomous will of buyer and seller, and that their will prevails over what it is determined by the Convention, which can be excluded in its entirety, partially or even in specific provisions. Therefore, a declaration made by the parties of the applicability of the Convention is irrelevant because it does not add anything to its validity. However, said declaration is interesting in order to avoid that, later in time the silence of the parties, together with other circumstances, could amount to a tacit exclusion of the CISG and that the real will of the seller and the buyer would have to be clarified during the process.

In the present case, there is evidence at the time of the negotiations and after such time that lead to the understanding that the will of the parties was not to be subject to the CISG, as it can be deduced from the following:

  1. In standard condition number 11 of the contracts issued by the appealing party [buyer] it is stated that "The contract will be interpreted by the laws of England", which is equivalent to excluding the international rules, especially when it has not been proved that by applying said domestic law, the CISG would be applicable.

  2. The Vienna Convention is not even mentioned within the initial claim, nor in the respondent's arguments or within the counterclaim, as all arguments use the Spanish domestic law.

  3. It is only at the time of this appeal that [the buyer], whose action was rejected by the Court of First Instance, introduces "ex novo" the claim that the disputed Convention should be applied, which results much more favorable in this particular issue.

By virtue of the above, the Court considers sufficiently proved that the contracting parties did not wish to submit the disputes that arose from this commercial relationship between the parties to international legislation (the Vienna Convention). Instead, the Court finds that Spanish domestic law is to be applied, in particular article 10.5 of the Civil Code.

[Ruling under Spanish domestic law, the Court then dismissed the buyer's appeal on the basis that the shoes made by the seller were fit for their purpose, as proven by the fact that the buyer resold them to a third party that handles commercial sales of shoes. Further, the shoes passed an inspection during the manufacturing process by a company commissioned by the buyer. The Appellate Court affirmed the decision of the Court of First Instance in which the buyer was required to pay the purchase price to the seller.]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee of Spain is referred to as [seller] and Defendant-Appellant of the United Kingdom is referred to as [buyer].

** Patricia Rincón was a member of the Moot team competing for Universidad Carlos III de Madrid in the Seventh Edition. She graduated in Law and Economics from said University in 2001 and is with the International Tax Department of the Madrid office of the law firm J & A Garrigues.

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Pace Law School Institute of International Commercial Law - Last updated November 21, 2003
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