Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography
Search the entire CISG Database (case data + other data)

CISG CASE PRESENTATION

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]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20010301 (01 March 2001)

JURISDICTION: Brazil

TRIBUNAL: Superior Tribunal de JustiÁa

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 272 739

CASE NAME: Excel Credito Financiamento e Investimento SA v. Ailton de Souza Rocha

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Brazil

BUYER'S COUNTRY: Brazil

GOODS INVOLVED: Car


Case abstract

BRAZIL: 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

Classification of issues present

APPLICATION OF CISG: No

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles [-]

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

Go to Case Table of Contents

Editorial remarks

Go to Case Table of Contents

Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

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

Unavailable

Go to Case Table of Contents

Case text (English translation)

The CISG Translation Network

Superior Court of Justice 1st March 2001

Excel Credito Financiamento e Investimento S.A. v. Ailton de Souza Rocha

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).


FOOTNOTES

* All translations should be verified by cross-checking against the original text.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated March 17, 2014
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography