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CISG CASE PRESENTATION

Spain 21 March 2003 Appellate Court Barcelona (Moulding machine case)
[Cite as: http://cisgw3.law.pace.edu/cases/030321s4.html]

Primary source(s) of information for case presentation: CISG-Spain and Latin America website

Case Table of Contents


Case identification

DATE OF DECISION: 20020321 (21 March 2003)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial Barcelona, sección 1ª

JUDGE(S): Don Anntonio Pascual Nuño de la Rosa Amores

CASE NUMBER/DOCKET NUMBER: Appeal No. 619/2001

CASE NAME: Eugenio v. Barbaran, S.A.

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 3 de Gavá 20 April 2001

SELLER'S COUNTRY: Spain (plaintiff)

BUYER'S COUNTRY: Austria (defendant)

GOODS INVOLVED: Moulding machine


Case abstract

SPAIN: Audiencia Provincial de Barcelona, 21 March 2003

Case law on UNCITRAL texts (CLOUT) abstract no. 729

Reproduced with permission of UNCITRAL

Abstract prepared by Pilar Perales Viscasillas, National Correspondent

An Austrian buyer and a Spanish seller entered into a contract about a moulding machine, including sale and installation at the place of destination. The contract stipulated that the last payment rate should be due 30 days after the machine's installation. After the time elapsed, the buyer withheld the last payment rate, claiming that the machine was defective. In addition, the buyer claimed compensation for expenses and damages to its professional image due to the malfunctioning of the machine. The seller sued the buyer for the outstanding contract price and won. The buyer appealed the decision.

First, the court determined that there was a mixed contract, including elements of a sales contract and of a contract for services. The court decided that the installation was part of the sale price and that the sale of the machine was the essential part of the contract. The court noted that article 36 CISG holds the seller liable for any lack of conformity of the goods which occurs after the time the risk passes to the buyer and which is due to a breach of any of the seller's obligations. The court observed that the buyer had forwarded its claims only to prevent the payment of the rest of the purchase price pursuant to article 36 (2) and article 45 CISG, because it had failed to prove that the machine was not properly functioning. Additionally, the court held that the machine conformed to the contract expectations. As evidence the court took, beside others, the expert testimony that the buyer had earlier requested the seller to demonstrate the machine to some of its collaborators. Consequently, the court rejected the buyer's appeal.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 36(2) [Also cited: Article 45 ]

Classification of issues using UNCITRAL classification code numbers:

36B [Lack of conformity occuring after passage of risk: caused by seller's breach of any of his obligations]

Descriptors: Conformity 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

Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/cisg/respan52.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan52.htm>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated November 8, 2007
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