Brazil 1 March 2001 Superior Court of Justice (Excel Credito Financiamento e Investimento SA v. Ailton de Souza Rocha) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010301b5.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 272 739
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Brazil
BUYER'S COUNTRY: Brazil
GOODS INVOLVED: Car
Case abstractBRAZIL: Superior Court of Justice 1st March 2001
Abstract prepared by Vitor Silveira Vieira
This is a case between two parties from Brazil which applies the doctrine of substantial performance, what it considers to be consecrated in the Vienna Convention for the International Sale of Goods of 1980, despite not mentioning Article 25 CISG.
The parties signed a mortgage loan related to the sale of a car. However, the last installment was not paid on the agreed date. For that reason, Plaintiff [Seller] requested the car’s seizure from Defendant [Buyer], alleging the termination of the contract.
The Superior Court of Justice held that Plaintiff [Seller] was not entitled to the termination of the contract as the remaining amount to be paid referred only to the last installment, applying the doctrine of substantial performance and determining that Plaintiff [Seller] was only entitled to enforce the contract and request the payment of the last installment.Go to Case Table of Contents
APPLICATION OF CISG: No
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Portuguese): CISG-Brazil database <http://cisgbrasil.dominiotemporario.com/doc/stj2.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
The CISG Translation Network
Translation [*] by Vitor Silveira Vieira [**]
FACTS OF THE CASE
The parties signed a mortgage loan related to the sale of a car. The last installment was not paid on the agreed date. Plaintiff [Seller] requested the car’s seizure from Defendant [Buyer], alleging the termination of the contract. After Plaintiff initiated the proceedings in the Court of First instance, Defendant [Buyer] paid the last installment by means of a deposit at the judiciary.
ON THE ABOVE
The Court of First Instance rendered a decision favorable to the Defendant [Buyer]. The Appellate Court of Minas Gerais affirmed the decision, based on the fact that the payment was made afterwards.
The Superior Court of Justice held that the avoidance of the contract can only be made when the breach causes such detriment for the aggrieved party that it loses its interest in the performance of the contract. According to the Superior Court of Justice as the remaining part of the contract to be performed was only the last installment, the contract was substantially performed. Arguing an avoidance based on a partial breach and of such a low value would be, according to the court, an offense to the principle of substantial performance, admitted in Brazilian Law and consecrated in United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG). Thus, the Plaintiff [Seller] is only entitled to enforce the contract and request the payment of the last installment.
ON THIS GROUND
The Superior Court of Justice affirms the judgment of the Appellate Court of Minas Gerais, based on the doctrine of substantial performance, which was considered to be consecrated in the United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG).
* All translations should be verified by cross-checking against the original text.Go to Case Table of Contents