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CISG CASE PRESENTATION

Bulgaria 19 March 2001 Arbitration Case 26/00 [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010319bu.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20010319 (19 March 2001)

JURISDICTION: Arbitration ; Bulgaria

TRIBUNAL: Bulgarian Chamber of Commerce and Industry

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 26/00

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Unknown

BUYER'S COUNTRY: Unknown

GOODS INVOLVED: Unknown


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 79

Classification of issues using UNCITRAL classification code numbers:

79B [Impediments excusing party from damages]

Descriptors: Exemptions or impediments

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Editorial remarks

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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 (Bulgarian): Praktika Bulgarska turgovsko-promishlena palata (BTPP) 2000-2001, No. 4 [12-13]

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Arbitration Tribunal of Bulgarian Chamber of Commerce & Industry
Case No. 26/00 of 19 March 2001

Translation [*] by Bojidara Borisova [**]

Translation edited by Vessela Velkova [***]

SUMMARY

The following premises must exist for the obligation to pay a contractual penalty to arise: (1) a concluded contract; (2) a contract stipulation providing for a penalty, the amount of which is defined, in the event of breach of contract; and (3) breach of contract, which is the basis for the penalty obligation. The absence of one of these three elements makes the obligation to pay the penalty not reasonable.

CASE DECISION

In this dispute, only two of the required elements exist.

The parties concluded a contract, according to which the Claimant [seller] is obliged to deliver to the Respondent [buyer] a certain kind and quantity of goods. The contract clauses provide that if the wagons with the goods are not returned in the course of a 25-day non penal term, the [buyer] will be obliged to pay a penalty, which is contractually defined.

The existence of the third element, breach of contract by the [buyer], is not ascertained. From the invoice presented with the case, it is obvious that the [buyer] transported back the three wagons. The identification numbers of the wagons were printed on the invoice. Consequently, the [buyer] was not in breach of contract. In the event that the [seller] did not receive the wagons until 24 February 2000, which can be seen from a letter dated 24 February 2000, enclosed by the [seller] to the case, for the [seller] the obligation arises in 9 months term to inform the [buyer] according to the prescription of article 30(1) and (2) of [...], to enable the [buyer] to file a claim. The [seller] did not give evidence that he so informed the [buyer]. The actual notification for the failure of the transportation contract was made 663 days after the claim was brought to trial, i.e., after the expiration of the conventional terms, in which the responsibility of the transportation organization can be engaged. Consequently, the [buyer] did not have the possibility to file a claim against the transportation organization and it must be deemed that the [buyer] had correctly fulfilled his contractual obligation. Considering the facts, the conclusion might be drawn that the required conditions for exclusion of responsibility of the contracting parties premises exist in accordance with article 79 of the CISG. The [buyer] fulfilled its contractual obligation to return the wagons.

If one of the above listed premises does not exist, there is no legal reason for the engagement of the responsibility to pay damages. Bearing in mind that in this case one of the premises does not exist, the [seller]'s claim is not reasonable and must be discarded.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Claimant is referred to as [seller] and the Respondent is referred to as [buyer].

** Bojidara Borisova is a candidate for the degree of Ph.D. in Law at Sofia University "ST.Kl.Oxridski", Bulgaria.

*** Vessela Velkova, LL.B., is a participant in the LL.M. programme, Queen Mary, University of London.

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Pace Law School Institute of International Commercial Law - Last updated January 22, 2004
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