Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Spain 21 June 2002 Appellate Court Coruña (Rainbow trout eggs case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020621s4.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20020621 (21 June 2002)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial de la Coruña [Appellate Court], sección 6ª

JUDGE(S): Mª del Carmen Vilaroño López

CASE NUMBER/DOCKET NUMBER: 201/2001

CASE NAME: Unavailable

CASE HISTORY: 1st instance Juzgado Primera Instancia No. 6 de Santiago de Compostela 7 February 2001

SELLER'S COUNTRY: Denmark (plaintiff)

BUYER'S COUNTRY: Spain (defendant)

GOODS INVOLVED: Rainbow trout eggs


Case abstract

SPAIN: Audiencia Provincial de la Corunña 21 June 2002

Case law on UNCITRAL texts (CLOUT) abstract no. 486

Reproduced with permission of UNCITRAL

Abstract prepared by Maria del Pilar Perales Viscasillas, National Correspondent

A Spanish buyer purchased 1,500,000 rainbow trout eggs from a Danish seller. The buyer received the goods on 31 March 1998. The buyer claimed the existence of hidden defects owing to the presence of infectious pancreatic necrosis virus (IPNV). The parties disputed whether the buyer had given notice of this lack of conformity of the goods within a reasonable time, as required by article 39(1) CISG. The Court stated that the reasonable time for the buyer to give notice of the existence of the defect had to be as short a period as was practicable, not only to enable the seller to prepare its defence but also, for reasons of public policy, to allow the seller to prevent the spread of the infection. In the Court's opinion, even if the buyer was found to have acted diligently by dispatching the trout eggs for analysis on 28 April 1998, the buyer did not notify the seller within a reasonable time since notice was not given until 12 June 1998. In this respect, the Court pointed out that the buyer could have, and should have, been aware of the defects by early May at the latest since, according to the expert report, the virus has an incubation period of approximately one week and the diagnosis can be made within two to seven days.

Also, the Court concluded that the buyer had not sufficiently proven the existence of the virus in the trout eggs as purchased since the analyses carried out prior to shipment found the goods to be virus-free.

Go to Case Table of Contents


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 39(1)

Classification of issues using UNCITRAL classification code numbers:

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]

Descriptors: Lack of conformity notice, timeliness

Go to Case Table of Contents


Editorial remarks

Go to Case Table of Contents


Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/cisg/respan19.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan19.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion)

Go to Case Table of Contents

Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Audiencia Provincial de la Coruña, 21 June 2002

Translation by [*] by Mariana Somensi [**]

[...]

ANTECEDENTS OF THE CASE

FIRST - On 7 February 2001, Tribunal of First Instance No. 6 of Santiago of Compostela ruled:

"DECISION: That admitting the demand presented by Counsel Ms. Soledad S. S., in the name and representation of Mr. Erik H., against Mr. Juan Q. Q. [I] directed the [Buyer] to pay to the [Seller] the sum of seventy-five thousand (75,000) Danish crowns, plus legal interest on the aforementioned sum from 31 March 1998 until the sentence [was dictated] and the interest pursuant to Art. 921 of the Law of Civil Procedure of 1881 -- all with the express imposition to the [Buyer] of the legal costs caused [by the litigation]".

SECOND - Notified of this decision, an appeal was filed by Counsel Mr. José P. M. in the name and representation of the [Buyer]. Providing copy of the same to the other parties ... in conformity with the rules established in Art. 461.1 of the Law of Civil Procedure of 1881, [Seller]'s Counsel presented a written objection to [Buyer]'s appeal. In conformity with Art. 463 of this Procedural Law, the proceedings were sent to this Sixth Circuit of the Audiencia Provincial for resolution of the appeal, where a manuscript of civil appeal number 201/01 was formed, fixing to the deliberation, voting and decision ...

THIRD - In the reasoning of the present appeal, the rules and legal formalities have been observed.

LEGAL REASONING

FIRST - [Buyer]'s objection to payment of the price demanded by the [Seller] for 1,500,000 live rainbow trout eggs is based on the alleged existence of latent defects due to the presence of the virus infectious pancreatic necrosis (IPNV). [Buyer] alleges that prior microbiological analysis made in [Buyer]'s fish farm led to the conclusion of the inexistence of pathogenic agents of the virus, whereas, to the contrary, the microbiological analysis made out of the rainbow trout eggs from Denmark, that entered into [Buyer]'s works on 2 April 1998, and whose samples were sent in 28 April 1998, and that caused high mortality as a result of the presence of the virus in it. [Seller]'s pleading urges that [Buyer]'s objection be disregarded and that the [Buyer] be directed to pay to the [Seller] the sum that is established by an expert's opinion during the substantiation of this process, if that is the case.

SECOND - The question was examined by the Tribunal of First Instance which applied the Vienna Convention on Contracts for the International Sale of Goods of 11 April 1980, specifically Article 39(1) CISG - according to which "the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it."

The first instance judge considered that in this case the reasonable time for the buyer to inform the seller of the existence of the alleged defect has to be as soon as possible, not only to allow the seller to defend itself against the allegations that the goods were in non-conformity, but including reasons of public order ... lack of communication by the buyer of the existence of the defect could prevent the seller from avoiding the spreading of the infection. Taking this into account, the trout eggs having been delivered on 31 March 1998 - even admitting that the buyer acted diligently when he sent trout eggs for analysis on April 28 1998 - [Buyer] could have known and should have known of [the presence of the virus], at the latest, in the beginning of May, due to the fact that according to the expert's report the period of incubation of the virus IPNV is approximately a week, and nowadays the diagnosis is made between two and seven days. Due to that, when the buyer for the first time called to [Seller]'s attention the existence of the virus on 12 June 1998, the court concluded that the reasonable time for notice to the [Seller] had already been exceeded. The said reasoning about the materialization of the concept of reasonable time to which the mentioned international norm refers to we understand that is correct, because, not even by the [Seller] it has been reputed that in fact it was not given to him knowledge with less advance of the result of the analysis, nor the impossibility or difficulty to have known them in the short time span that the expert signals. The urgency that accompanied the knowledge of this result is made clear by the terms of [Buyer]'s fax of June 12, in making reference to the serious harm caused to his company in not being able to use the fish farm on a 100% capability, and having to control and isolate the IPNV. Moreover, having taken the samples to be analyzed on 28 April, the [Buyer] gave no reply to the fax sent by the [Seller] dated 25 May 1998 demanding the payment of the bill; [Buyer] did not even at that time call to [Seller]'s knowledge the high level of mortality among the newly hatched fish.

THIRD - In any event, it is [Buyer's responsibility to demonstrate the existence of the virus in the trout eggs [Buyer] purchased, and, about this particular the appellate court has to agree as well with the judge of first instance on the insufficiency of the evidence provided.

[The court discusses the basis for concluding that there was insufficient evidence to establish the existence of the virus in the trout eggs from Denmark.]

FOURTH - That the [Seller], while seeking to obtain the payment of the bill extra judicially had agreed to a reduction of the value of it, cannot be understood as binding, taking into account the costs and the delay that would involve seeing [Seller] led to carry out an appeal.

FIFTH - The rejection of the appeal implies that, in conformity with the rules established in article 398.1 of the Law of Civil Procedure 1/2000, the costs that could have been avoided in this appeal are imposed on the Appellant [Buyer].

[...]

[WE] SPEAK: Not admitting the appeal filed on behalf of [Buyer] by against the sentence by the Tribunal of First Instance Nš 6 of Santiago of Compostela on 7 February 2001, we confirm that sentence and impose on the Appellant [Buyer] the costs that could have been avoided in this appeal.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee of Denmark is referred to as [Seller]; Defendant-Appellant of Spain is referred to as [Buyer].

** Mariana Somensi [add bio details]

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated October 20, 2004
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography