Argentina 17 March 2003 Juzgado Comercial [Commercial Court] Buenos Aires (Wacker-Polymer Systems GmbH v. Quiebra v. Glaube S.A. et al.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030317a1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 34097
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (paintiff)
BUYER'S COUNTRY: Argentina (defendant)
GOODS INVOLVED: [-]
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
4B [Scope of Convention (issues excluded): currency of payment]; 9D1 [International usages and practices established by the parties: parties bound by applicable usages and practices]
4B [Scope of Convention (issues excluded): currency of payment];
9D1 [International usages and practices established by the parties: parties bound by applicable usages and practices]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/rargen15.htm>
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/sargen15.htm>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
(summary procedure for the enforcement of monetary claims)
Buenos Aires [17 March 2003]
Translation [*] by Juan Manuel Falabella [**]
[Buyers] have not brought any defense in this summary procedure for the enforcement of monetary claims; therefore, this court shall render the decision stated in Section 551 of the Code of Procedure (same rule as Section 542, last paragraph).
I. In this case, while the [Seller] requests that the writ of execution be ordered in the origin currency (US dollars), [Buyers] have acknowledged the debt, requesting it be converted into Argentine pesos (pages 93 and 126 of the records).
In addition, [Seller] has subsidiarily argued that Section 1 of Executive Order No. 214/02 and Section 16 of Act No. 25563 (on pages 133/134) are contrary to the Constitution. The service of notice of the complaint was answered by the [Buyers] on pages 182 and 196/197, respectively. The public prosecutor has also rendered his opinion on page 190.
II. In the first place, it is necessary to remind that, in this case, [Seller] requests the enforcement of an acknowledgement of a debt in which [Buyers] have admitted they owe the [Seller] the amount of US $58,900, related to the balance of those unpaid invoices stated in clause one (three invoices), undertaking to pay such amount in four installments on 31 May 2001, 15 June 2001, 16 July 2001 and 15 August 2001, for the amount of US $14,800 in the first installment and for the amount of US $14,770 in each of the other three installments.
Although it is true that [Seller] has chosen to file a summary procedure, it is clear that an undisputed remission to the cause of the debt -- entailing the sale of goods made in favor of the [Buyer] and implemented in the invoices detailed in clause one -- arises out from the very instrument to enforce, and this authorizes its analysis for the purpose of deciding this case.
III. In fact, the contractual relationship between the parties, arising from the evidence herein, does not express any choice with regard to the governing law in case of conflict. That is to say, the evidence herein -- i.e., neither the acknowledgement of the debt nor the invoices hereto -- does not prove the existence of an express agreement on the choice of the local law as the governing law of the contract and this determines that the contract shall be governed by its own material rules and the rules of local private international law shall only be applicable by default and, in case the parties have not chosen to settle their conflicts under a certain law, to determine the law governing the contract with respect to all those issues that parties have not considered by virtue of the exercise of their material autonomy. In this case, the contractual relationship is formed by the invoices and the acknowledgement of the debt, which cannot be considered a substitution of a new obligation but a simple step in the contractual relationship between the parties.
According to what has been said, pursuant to the terms and conditions of the contractual relationship and considering the lack of reference made by the parties with respect to the governing law in the event of any controversy, the substance of the transaction shall be governed by the Argentine conflict of laws in connection with international contracts (in this case, the Vienna Convention on Contracts for the International Sale of Goods 1980 and Sections 1209 and 1210 of the Civil Code, Argentine conflict of laws of contractual nature.)
The submitted evidence confirms the existence of a claim duly proved in relation to its existence and enforceability, in which the parties agreed to an international sale of goods with clearly and intentionally stated terms and conditions, where it was consented to submit the transaction to a Cost & Freight clause, referring to the terms of the "International Rules for the Interpretation of Trade Terms" of the Paris International Chamber of Commerce, through an expressed reference (see invoices on pages 113/123 where such clause is included).
It is worth mentioning that such "Terms" have the purpose of providing a set of optional international rules which state the interpretation of the main terms employed in contracts for the international sale of goods in relation to the delivery of goods, passing of risk, expense distribution as well as the documentary procedures necessary to cross the borders of the different countries. In this case, in connection with the agreement on the abovementioned clause (Cost & Freight), as in clauses FOB, CIF, CF, international custom dictates that the law of the place of shipping shall govern the case, and that such place is generally the same place of seller's domicile (cf. Boggiano, A. "Derecho Internacional Privado", T. II p. 384).
It is further worth noting that the content of the agreement of the parties is applicable if it does not clash with the rules and customs generally applicable to the corresponding transaction. It must be stated that the Vienna Convention on Contracts for the International Sale of Goods, governing this case, states in article 9 that parties are bound by any usage to which they have agreed and by any practices which they have established between themselves -- in this case, the C&F clause -- but it is considered that parties have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. In this case, the C&F clause is part of the "C-Terms" which require that the seller hire the transport in the usual conditions, bearing the costs. The "C-Terms" have the same nature as the "F-Terms", by which the seller performs the contract in the place of shipping, included in the category of agreements entered into with shipment (cf. "Revista de Estudios Marítimos", "los Incoterms 2000", No. 52, June 2001, page 77) which require that the seller deliver the goods for shipment in accordance with buyer's instructions.
IV. In this case, although the place of performance has not been expressly agreed upon (Section 1212 of the Civil Code), it may be affirmed, unequivocally, that the place of performance is implicitly but clearly stated when, the [Seller] having its domicile in Germany, the delivery of the goods is agreed in accordance with a Cost & Freight clause, shipment in WRS Burghausen. There is no doubt that the law of the agreed place of performance was the German law -- such was the place in which the principal consideration of the contract shall be performed, since such is the place where the goods were delivered and also it is the place of the domicile of the creditor (cf. Boggiano, A. "Derecho Internacional Privado", T. II p. 253/292). In this regard, by operation of Sections 1209 and 1210 of the Civil Code, the law of the place of performance governs the formation, nature, validity, obligations and any other issue, of any nature, related to the contract. It is further stated that, given the fact that, in this case, the parties have not agreed on a clearly stated governing law and the issue has not been foreseen by the Vienna Convention, Argentine conflict of laws (lex fori) shall subsidiarily apply.
Since this is a contract entered into by a German exporter and an Argentine importer, the case is governed by Sections 1209 and 1210 of the Argentine Civil Code, which state the applicability of the law of the place of performance -- in this case, German law -- to the formation, nature, validity and obligations of the contract, in relation to the issues not foreseen by the parties or the Vienna Convention.
V. However, such conflict of laws may be set aside, in our country and in this case, by operation of the police power laws deriving from economic emergency laws (Act No. 25561, Executive Order No. 214/02 and agreeing ones) that establish, in principle, for individuals, the "pesification" of those legal relationships arising under the Convertibility Act (Act No. 23982) since such rules are mandatory laws of the lex fori, which cannot be disregarded and shall prevail over parties' will. Nevertheless, this case is an exception provided by police power laws in Executive Order No. 410/02.
Nevertheless, [Seller]'s claim does not fall within the scope of the statutory currency conversion into pesos set forth in Section 1 of Executive Order No. 214/02 because it is a private sector transaction to pay a sum of money in foreign currency, for which performance the foreign law shall apply [German law] since it is an event expressly considered in Executive Order No. 410/02, Section (1), subsection (e) and in Regulations A 3507, 3561, 3566 issued by the Central Bank of the Argentine Republic that excludes the obligations to pay a sum of money in foreign currency of the public or private sector from the currency conversion into Argentine pesos. Given the fact that German law shall govern this case, the claim shall be allowed in foreign currency.
Now wherefore, it is ordered that:
1. […] the writ of execution be ordered against [Buyers] for the amount stated in the claim, i.e., US $ 51,500 plus the interest agreed at the annual rate of 18% as from the date of default (4 June 2001, as stated on page 28) until the effective date of payment. Interest shall not be monthly compounded since it is a long term interest rate and the circumstances stated In re "Uzal S.A. v. Moreno, Enrique" are not met.
2. [Buyers] shall bear the costs of this procedure.
María Elsa Uzal
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Germany, Wacker-Polymer Systems GMH & Co. KG, is referred to as [Seller] and Defendants of Argentina, Glaube S.A. and Elio Pons, are referred to as [Buyers or Buyer].
** 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, where he will receive his law degree cum laude. 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.Go to Case Table of Contents