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CISG CASE PRESENTATION

Spain 12 February 2002 Appellate Court Barcelona (Comercial San Antonio, S.A. v. Grupo Blocnesa, S.L.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020212s4.html]

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

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Case identification

DATE OF DECISION: 20020212 (12 February 2002)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial de Barcelona [Appellate Court], sección 14ª

JUDGE(S): María Eugenia Alegret Burgues

CASE NUMBER/DOCKET NUMBER: 1307/2000

CASE NAME: Comercial San Antonio, S.A. v. Grupo Blocnesa, S.L.

CASE HISTORY: 1st instance Juzgado Primera Instancia No. 47 de Barcelona 30 October 2000

SELLER'S COUNTRY: Spain (defendant)

BUYER'S COUNTRY: Venezuela (plaintiff)

GOODS INVOLVED: Goods


Case abstract

SPAIN: Audiencia Provincial de Barcelona 12 February 2002

Case law on UNCITRAL texts (CLOUT) abstract no. 488

Reproduced with permission of UNCITRAL

Abstract prepared by Maria del Pilar Perales Viscasillas, National Correspondent

A Venezuelan seller and a Spanish buyer were in a dispute about the performance of a sales contract. The Court, citing article 329 of the Spanish Commercial Code and articles 25, 32(2), 34 and 49 CISG, held that the seller had failed to perform its main obligation, namely to place at the buyer's disposal the goods which were prepaid by the buyer, and in particular by failing to provide a certificate of origin of the goods which was necessary in order for the goods to be exported.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 25 ; 32(2) ; 34 ; 49 ; 84

Classification of issues using UNCITRAL classification code numbers:

25A [Effect of a fundamental breach: avoidance of contract];

32B [Sellerís duties when obliged to arrange for carriage];

34A [Sellerís obligation to hand over documents];

49A1 [Buyerís right to avoid contract (grounds for avoidance): fundamental breach of contract];

84A [Seller bound to refund price must pay interest]

Descriptors: Avoidance ; Fundamental breach ; Delivery ; Interest

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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=881&step=Abstract>

Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/cisg/respan21.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan21.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=881&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Audiencia Provincial de Barcelona
(Comercial San Antonio, S.A. v. Grupo Blocnesa, S.L.)

12 February 2002

Translation [*] by Juan Manuel Falabella [**]

Edited by Guillermo Coronado Aguilar [***]

[...]

Having reviewed and considered the Declaratory Judgment on Small Claims No. 171/2000, on appeal before the 14th Division of this Court of Appeals, heard by the Court of Original Jurisdiction No. 47 of Barcelona, brought by the [Buyer], represented by Francisco Lucas R.O. and Bernardino M. G., lawyers, against [Seller] represented by Maria Francisca B. S. and José Luis S. P., lawyers; which is pending at this Appellate Court by virtue of the appeal lodged by [Seller] against the decision rendered on 30 October 2000 by the court of Original Jurisdiction.

OVERVIEW

1. The operative part of the appealed decision reads as follows:

"HOLDING: That, entertaining in part, and solely in part, the claim brought by the [Buyer], represented by Francisco Lucas R. O., lawyer, against the [Seller] represented by Maria Francisca B. S., lawyer; upon the termination of a contract and a monetary claim, the Court orders that the contract for the sale of the goods described in the pro-forma invoice attached to the complaint as Exhibit No. 25 be terminated and that the [Seller] pay the [Buyer] the amount of US $36,561 or its equivalent in Spanish Pesetas pursuant to the offer exchange rate (i) of the due date of the obligation, or failing that, (ii) of the closest previous day pursuant to the exchange rate published in the Official Gazette of Spain on 18 December 1998, plus the legal interest accrued on such amount as from 19 May 1999. The Court thus dismisses the complaint in relation to the termination of the contract for the provision of goods in connection with Exhibit No. 14 attached to the complaint, without specifically awarding costs."

2. Against this decision, the [Seller] lodged an appeal and once the Court allowed such appeal to both effects, the records of the case were referred to this Court of Appeal, prior service of process to the parties and, upon the appearance of the parties, the legal steps were observed and a hearing in open court was held on 6 February 2002, with the result described in the preceding court order.

3. During this proceeding, the legal statutes of limitations have been observed.

Honorable Judge Maria Eugenia Alegret Burgués delivered the opinion of the Court.

LEGAL REASONING

1. The [Seller], who was ordered to pay the [Buyer] the amount of US $36.561 by the Court of Original Jurisdiction for the breach of the international contract for the sale of goods which both parties had concluded, appeals this decision:

      (i) On the one hand, by filing a defense stating that [Buyer]'s legal representative lacked authority to sue on behalf of the claimant, and, consequently, the resulting insufficiency and illegality of the power of attorney submitted by the [Buyer]'s legal representative, since it did not contain the proper apostille; [*] and

      (ii) On the merits, by arguing that the [Seller] was not liable for the breach of the contract since the goods had always been placed at the [Buyer]'s disposal and that, if the goods were not delivered, it was due to the [Buyer]'s fault, since it had not handed over the documents required to export the goods.

2. The first challenge should be rejected since the power of attorney submitted to the Court was granted in Spain; therefore, no apostille is required. [Buyer]'s power of attorney also appears in the records of the case; hence, the defense must be rejected.

3. [Seller]'s challenge in relation to the merits must also be rejected. The [Buyer] specified to the [Seller] when the goods, which had already been paid for, had to be delivered. The [Seller] failed to deliver the goods and only answered [Buyer]'s complaints by arguing that the goods were placed at [Buyer]'s disposal. However, there is no evidence supporting this and, actually, the [Seller] did not perform any act of real delivery.

The [Seller] argues that the goods could not be delivered since the [Buyer] had failed to submit the relevant documents. It further argues that this fact is supported by the oral testimony under oath by the [Buyer]'s legal representative to oral interrogatories No. 3 and 4. The Court does not agree with this reasoning. While it is true that [Buyer]'s legal representative answered affirmatively to the question whether the [Buyer] should hand over to the [Seller] the documents required in Venezuela to legalize the devices and to issue the technical and security certificates required to take over the goods at the place of delivery, it is also true that the evidence of oral testimony under oath must be assessed in relation to the rest of the evidence and that all the evidence should be considered as a whole; therefore, examining all of the oral testimony made under oath, especially the answer to question No. 7 -- whether it was true that the [Buyer] had not sent the documents required to deliver the goods -- the [Buyer]'s representative expressly stated that he did not understand the question since the [Buyer] was not supposed to send any documents. This reveals that the [Seller]'s allegation is not supported by that sole statement. In fact, on the one hand, it is the [Seller] who advertised as an exporter (page 32) and therefore ought to know the requirements and procedures necessary for the delivery of goods and, on the other hand, it is evidenced in the records of the case that the [Seller] sent a first batch even when it did not have the certificate of origin that it, subsequently, claims was essential to export.

In relation to such a certificate, considering its own denomination, it can be concluded that it is a document that must be issued by the manufacturer, as was done in connection with the previous delivery. Therefore, the document appearing in page 130 reveals that the [Buyer], upon the urgency to obtain the certificate required to take over the goods, sent in first place, from the Customs Office in Venezuela, delivered to the [Seller] such a document in "blank" for the [Buyer] to fill it in and for the Chamber of Commerce of Barcelona to endorse it, which effectively did so. No such a thing happened in relation to the second contract; therefore, upon the [Seller]'s breach of its main obligation, which was to place the goods at the [Buyer]'s disposal (sec. 329 of the Commercial Code and arts. 25, 32(2), 34 and 49 of the Convention on Contracts for the International Sale of Goods), it was appropriate to honor [Buyer]'s claim.

4. The costs of the appeal shall be borne by the [Seller] pursuant to sec. 710 of the LCE [*]

HOLDING

Having rejected the appeal lodged by the [Seller] against the Decision rendered on 30 October 2000 by the Court of Original Jurisdiction No. 47 of Barcelona, in the proceedings of the Declaratory Judgment on Small Claims No. 171/2000, this Appellate Court decides to uphold such decision in all its parts, imposing the costs of this appellate proceedings on the [Seller].

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant-Appellee of Venezuela, Comercial San Antonio S.A., is referred to as [Buyer] and Defendant-Appellant of Spain, Grupo Blocnesa S.L. is referred to as [Seller].

Translator's note: Apostille = a standard certification provided under the Hague Convention of 1961 for purposes of authenticating documents for use in foreign countries; LEC = Ley de Enjuiciamiento Civil, [Spanish Civil Proceedings Act].

** Juan Manuel Falabella was a participant in the 16th annual Willem C. Vis International Commercial Arbitration Moot representing the School of Law, Universidad de Buenos Aires. He has attended the Summer Institute in International and Comparative Law, Stetson University, and has Sworn Legal Translation credentials, School of Modern Languages, Pontificia Universidad Católica Argentina. He is currently a Legal Assistant at the Buenos Aires law firm of Hope, Duggan & Silva.

*** Gullermo Coronado Aguilar was a participant in the 15th annual Willem C. Vis International Commercial Arbitration Moot representing Universidad Panamericana, campus Guadalajara. He is now correspondent of the Global Sales Law Project directed by Ingebor Schwenzer and adaptor from English to Spanish of articles of the book "Commentary of the UN Convention on the International Sales of Goods", directed by Ingebor Schwenzer and Edgardo Muñoz. He is Legal Advisor for the law firm Coronado Figueroa y Associados, S.C.

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Pace Law School Institute of International Commercial Law - Last updated September 10, 2009
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