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CISG CASE PRESENTATION

Spain 11 March 2002 Appellate Court Barcelona (Chip protection labels case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020311s4.html]

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

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Case identification

DATE OF DECISION: 20020311 (11 March 2002)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial de Barcelona [Appellate Court], sección 17ª

JUDGE(S): Victoriano Domingo Loren

CASE NUMBER/DOCKET NUMBER: 60/2002

CASE NAME: G & D Iberica S.A. v. Cardel

CASE HISTORY: 1st instance Juzgado Primera Instancia 3 Sant Boi de Llobregat 16 October 2001

SELLER'S COUNTRY: England (defendant)

BUYER'S COUNTRY: Spain (plaintiff)

GOODS INVOLVED: Chip protection labels


Case abstract

SPAIN: Audiencia Provincial de Barcelona 11 March 2002

Case law on UNCITRAL texts (CLOUT) abstract no. 489

Reproduced with permission of UNCITRAL

Abstract prepared by Maria del Pilar Perales Viscasillas, National Correspondent

A Spanish buyer entered into a contract with an English seller for the purchase of protective labels for certain computer chips. The buyer considered the goods to be defective and sought to return them to the seller, who refused to take the goods back. The buyer then sought to place the goods in judicial deposit until the dispute was resolved. The Court of First Instance refused the request. The Court of Appeal instructed the lower court to reconsider the applicability of judicial deposit under the circumstances, given the obligation of the buyer who is seeking to reject merchandise to take reasonable measures to protect the goods, including depositing them with a third party pending return pursuant to articles 86 and 87 CISG, as well as applicable provisions of the Spanish Law of Civil Procedure.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 86 ; 87

Classification of issues using UNCITRAL classification code numbers:

86A [Duty of buyer who has received goods and intends to reject: obligation to take reasonable steps to preserve goods];

87A [Preservation of goods by deposit in wharehouse]

Descriptors: Preservation of goods ; Storage of goods

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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=880&step=Abstract>

Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/cisg/respan20.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan20.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=880&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 [JUR 2002/138814]
(Barcelona Court of Appeal, Division 17)

11 March 2002

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

Jurisdiction on civil matters
Appeal No. 60/2002
COMMERCIAL CONTRACTS

BACKGROUND

1. In the general procedure for handling collateral issues No. 641/2001, brought by G & D Iberica S.A. [Buyer] against Cardel [Seller], the Court of Original Jurisdiction No. 3 of Sant Boi de Llobregat on 16 October 2001 rendered an order, whose operative part states:

"HOLDING: The Court dismisses the filing of a voluntary jurisdiction procedure upon the request to deposit certain goods with the Court, without detriment to the claims that [Buyer] may bring.

Be it notified pursuant to section 284(4) of the L.O.P.J. [*] stating that, against this order, an appeal may be brought, which shall be filed within five days as from the notice thereof has been served upon."

2. [Buyer] lodged an appeal against this order. The filing of the appeal was granted and the Court agreed to vote and announce the decision on the appeal on the 28th day of February of 2002.

Honorable Judge Victoriano Domingo Loren delivered the opinion of the Court.

LEGAL REASONING

1. The issue involved is whether it is possible to deposit the goods delivered to the [Buyer] with the Court when the [Buyer] has intended to return them since they were damaged and the [Seller] has refused the return thereof.

The Court of Original Jurisdiction rejected the petition based on the fact that Section 322, invoked by the [Buyer], solely protects the Seller, allowing the deposit only when the Buyer refuses, without cause, to receive the goods or when the Buyer delays the reception of the goods.

[Buyer] lodged an appeal arguing that:

The United Nation Convention on Contracts for the International Sale of Goods ("CISG"), done in Vienna on 11 April 1980 governs the sales contract and allows the requested deposit;

The [Seller] is an English corporation without domicile or branches in Spain;

The goods are perishable (labels to protect the chips to be embedded into cards)

Under the CISG, done in Vienna on 11 April 1980 and signed by Spain on 17 July 1980, the requested deposit shall be applicable, since the Convention states that:

"If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances." (Art. 86)

"A party who is bound to take steps to preserve the goods may deposit them a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable." (Art. 87)

On the other hand, the deposit of goods, as an act of voluntary jurisdiction, is thoroughly regulated under Sections 2119 to 2127 of the LEC [*] of 1881, which are still in force. These sections specifically consider only two suppositions: (a) the refusal of the addressee to receive the goods; and (b) delay in the reception thereof, but they also contain a generic clause which expands, without limits, the scope of application of these suppositions to the existence of any other analogous cause which generates the deposit of the goods.

Therefore, the appealed decision shall be reversed and, in turn, a decision shall be rendered ordering the Court of Original Jurisdiction to proceed in the manner that the aforementioned sections command.

HOLDING

Having allowed the appeal lodged by the [Buyer] and having reversed the order rendered on 16 October 2001 by the Court of Original Jurisdiction No. 3 of Sant Boi, this Appellate Court decides that the Court of Original Jurisdiction shall proceed in the manner prescribed by Sections 2119 to 2127 of the LEC [*] of 1881, which are still in force.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Petitioner-Appellant of Spain, G. & D. Iberica S.A., is referred to as [Buyer] and Defendant-Appellee of England, Cardel, is referred to as [Seller].

Translator's note on abbreviations: LEC = Ley de Enjuiciamiento Civil, [Spanish Civil Proceedings Act]; LOPJ = Ley Orgánica del Poder Judicial, [Judicial Branch Organization 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.

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