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CISG CASE PRESENTATION

Switzerland 19 August 2003 Canton Appellate Court Valais (Clothing, household linen case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030819s1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20030819 (19 August 2003)

JURISDICTION: Switzerland

TRIBUNAL: Tribunal cantonal [Appellate Court] Valais

JUDGE(S): Jean-Pierre Derivaz (president), Françoise Baimer Fitoussi, Stéphane Spahr (juges), Laurence Crittin (greffière)

CASE NUMBER/DOCKET NUMBER: C1 03 100

CASE NAME: L... S.p.r.l. à Paris v. A... S... à Montana-Vermala

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Clothing, household linen


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 10 [Also cited: Articles 14 ; 7(2) ; 30 ; 31 ; 32 ; 36 ; 45 ; 52(2) ; 53 ; 54 ; 57 ; 58 ; 59 ; 67 ; 74 ; 78 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): currency of payment];

10A [Place of business: definition of]

Descriptors: Scope of Convention ; Currency issues ; Business, place of

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht / Revue suisse de droit international et de droit européen (1/2004) 106

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/895.pdf>

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

Court of Appeals (Tribunal cantonal) Valais

19 August 2003 [C1 03 100]

Translation [*] by Amrita Chadha [**]

PROCEDURE

A. As per petition of 29 January 2003, Plaintiff I... S.p.r.l. (hereafter [Seller]) with headquarters in Paris, initiated proceedings towards recovery of indebtedness and payments versus Defendant A... S (hereinafter [Buyer]), with the following conclusions.

  1. [Seller]'s petition is admitted.

  2. [Buyer] is obligated to pay:

    Euro 557.02 CHF [Swiss francs] 846.71 with 5% interest from 15 Feb. 2002
    Euro 2,698.26 CHF 2,959.43 with 5% interest from 21 April 2002
    Euro 758.80 CHF 1,113.43 with 5% interest from 25 May 2002
    Euro 4,936.02 CHF 7,243.12 with 5% interest from 2 Oct. 2002

    i.e., a total of CHF 13,162.70 (interest as given).

  3. The final amount of payment for suit no. 61935 is levied in due course.

  4. The charges/expenses of the procedure are put in the charge of [Buyer] for C... H... C...

  5. An equitable indemnity is allowed to [Seller] for expenses.

B. By ordinance of 19 February 2003, the judge of Sierre District served notice to Defendant [Buyer] and allowed a period of twenty days to respond and furnish an advance of 1,150 Swiss francs, under risk of default.

On 2 April 2003, the judge served a second notice for [Buyer] to respond as well as provide the requisite deposit, allowing ten days. The summons explicitly mentioned the consequences of default. The notice was served on 7 April 2003 with the help of the local police intermediary.

[Buyer] deposited a response on 11 April 2003. Since [Buyer]'s response did not correspond at all to the legal requirements the judge allowed a period of ten days, by ordinance of 7 May 2003 for her to respond in the correct manner.

On 22 May 2003, [Buyer] requested an extension of the time period. On 26 May 2003, the judge refused to consider the plea stating that the [Buyer] had not deposited the required advance in the period allowed on 2 April 2003. On 26 May 2003, he forwarded the file to the Tribunal cantonal for examining the condition of default and, if need be, to deliver a default judgment.

REASONING OF THE COURT

I. Preliminary

      1.  a) In view of the legal value of the case (13,162 fr. 70; article 15(1) CPC), the district bench is competent to examine if the conditions of default have been met (art. 23(1)(b) 101 al 5 cpc; RVJ 1991 p 394 consid 1d; 194 p 125 consid. 1a and 16). The arrangement of the procedure is, in effect, governed by the lex fori, when the case is such that one party stays abroad (Knoepfler/Schweizer; Droit international privé suisse 1995, p. 281, no. 637)

            b) The [Buyer] was summoned twice with express mention of the consequences of default (art. 97 et seq. CPC) towards paying the advance of 1,150 francs. [Buyer] did not respond to those injunctions. Art. 259, al CPC states that default by one of the parties in furnishing the advance during the extended time allowed leads to a judgment of default or non-receivability of request.

Being informed of the forwarding of the file to judicial authority, the [Seller] did not disclaim in writing the consequences of default (arts. 100 & 101 at 5 CPC). Thus, there was allowance to render a judgment of default.

            c) As per the terms of article 102(1) CPC, in case of judgment of default, the allegations and conclusions of the non-defaulting party are admitted based on the file unless the claim is manifestly non-receivable on appeal. The judge cannot, in effect, be forced by the procedural rules to excuse with his authority an inexact legal application (Ducrot, Le droit judiciare privé valaisan 2000, p.420, RVJ 1992 p. 205 & references, 1995 p. 164 consid 1c)

II. Statement of facts

      2.  a) The allegations of the [Seller], un-contradicted by the file, result in the following:

[Buyer] ordered household linen and garments/clothes from [Seller], whose headquarters is in Paris. The bills not paid were:

-   Bill No. 02/51 of 5 February 2002 of Euro 577.02
-   Bill No. 02/55 of 11 April 2002 of Euro 2,698.26
-   Bill No. 02/60 of 15 May 2002 of Euro 758.80
-   Bill No. 02/65 of 2 April 2002 of Euro 4,936.02

Only the fourth bill mentions being payable within thirty days. No rate of interest for delay was listed.

The goods were respectively sent by the French post or handed to a carrier. Bill No. 2/65 corresponding to the first order of winter, received by the [Buyer] on 11 September 2002, was handed to the carrier on 30 August 2002.

            b) Certain deliveries showed differences with the orders placed; this was clear by a delivery of different goods or the unavailability of some. That notwithstanding, [Buyer] never disputed the quality or the quantity of the deliveries.

By courier on "113 (sic) September 2002", [Buyer] informed [Seller] that the winter order had arrived a few days late. According to [Buyer], this delay justified the fact that the corresponding bill was paid only in January 2003. In the same vein, [Buyer] admitted to knowing about a "deficiency in funds".

By courier of 23 September 2002, [Seller] informed [Buyer] that [Seller] had notified the carrier that the delivery was urgent; [Buyer], on the other hand, had delayed payment of the previous bills of the summer by ten days. [Buyer] also indicated that she had otherwise made inquiries with the transporter as to the reasons for the delay. This information taken, it was apparent that the winter order had been delivered on 11 September 2002 by virtue of an agreement between the transporter and [Buyer].

This information was not given to the courier of [Seller] on 23 September 2002.

III. Considerations of Law

      3. a) Article 1(2) of the Federal Law on Private International Law (hereafter LDIP)

reserves the application of international treaties. The Lugano Convention of 16 September 1988 (effective between Switzerland and France from 1 January 1992) concerning the judicial competence and execution of decisions in civil and commercial matters (hereafter CL) is found by the following application. Its article 2 § 1 allows that under special dispositions, persons domiciled in the territory of a state party to the agreement are subject to the jurisdiction of the state, whatever their nationality. § 2 of the CL also specifies that persons who are not nationals of the state of domicile are subject to the same rules on competence as applicable to nationals.

Article 112 al of LDIP provides that the Swiss tribunals of domicile or lack of domicile, of the habitual residence of the [Buyer] are competent to take cognizance of the proceedings of a contract, reserving only one subsidiary hearing as applicable under the Lugano Convention. It determines the territorial competence within the framework of international competence as per article 2 CL (Dutoit, Commentary de la loi fédérale du 18 decembre 1987, 2001 n. 3 ad art. 112 LDIP).

            b) The Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods (hereafter CISG) constitutes an autonomous right which supports the competence of the court in special instances and opens the possibility of recourse to the federal courts (RVJ 1994 p 125 consid 1a et 1b) provided the legal value is less than 8,000 Swiss francs.

In this case, the individual incumbent of C... H... C is domiciled in Switzerland, Montana. Consequently, as per the legal value, the court is competent to judge the current litigant.

            c) As per applicable law, article 118 LDIP must be reconciled with the CISG. If both parties have their establishment in the Contracting States (Art 1(1)(a) CISG), the Vienna Convention brings them under article 118 LDIP for matters governed by this Convention.

(Dutoit, op, cit., n. 9 ad art. 118 LDIP)

The concept of "establishment" is not defined by the Convention but a uniform judicial interpretation clarifies this: It suffices that there exists an organization of certain continuance and having certain stands in trade fairs or depots for goods.

(Hermann: Anwendungsbereich des Wiener Kaufrecht in Wiener Kaufrecht 1991, p. 86)

In this case, the two parties are domiciled in Contracting States, [Seller] in France and [Buyer] in Switzerland. They both fit the description of establishment given above. The CISG is therefore applicable.

      4.  a) According to article 4, sentence one, CISG, the Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. A sale, as per the CISG, is defined as a contract by which one party agrees to deliver goods and in transferring the ownership, if need be, delivers related documents so that the other party can pay the price and take delivery (Neumayer/Ming, Convention de Vienne sur les contrats de vente internationale de marchandise, commentaire, 1993, no. ad. art. 1)

Articles 14-24 CISG deal with the formation of a sales contract: if an offer is sufficiently definite, and it is accepted by the addressee and the declaration of acceptance is returned to the offeror, the contract in deemed to be concluded.

            b) In this case, there were several contracts, each resulting in orders placed by the [Buyer] and acceptance of these orders by the [Seller]. The orders were followed by corresponding bills. They were apparently received in France as nothing indicates that the [Seller] had an address in Switzerland.

      5. The seller and the buyer have reciprocal obligations towards concluding sales contracts.

            a) The obligations of the seller are laid out in art. 30 et seq. CISG. Article 31(a) CISG concerns contracts of sales involving carriage of goods.

For the seller, the delivery of the goods consists of handing them to a carrier (railroad company, truck company, postal services, etc.) for shipment to the buyer. The carrier must not be dependent on the seller (i.e., must be independent) for this article to apply (Neumayer/Ming op. cit. no. 4 et seq. ad art 31). In accordance with article 32 CISG, there must be identification of the goods by the fixing of labels or the address of the receiver (Neumayer/Ming op. cit. no. 2 ad. Art 32). As per art. 67(1) CISG, when these conditions have been met, the risk passes to the buyer at the point of handing over the goods to the first carrier (Neumayer/Ming op. cit. no. 5 ad art 3a and no. 2 et seq. a art 67).

The obligation to pay the price also passes to the buyer from that moment onwards and the buyer is obliged to pay the price of sale even in case of loss or deterioration of goods (Vulliety, Le transfert des risques dans la vente international, comparaison entre le Code suisse des Obligations et la Convention de Vienne des Nations Unis du 11 avril 1980, 1998, p, 175) Art 52(2) CISG states that if the seller delivers a greater quantity than that specified in the contract the buyer can accept or refuse to take delivery of the excess amount. If the buyer accepts the delivery of all or part, he must pay for it at the contract rate.

            b) The obligations of the buyer are governed by articles 53 et seq. CISG. Art. 53 obliges the buyer to pay the price and take delivery of the goods. The buyer may acknowledge to pay the price at a particular location (Art. 57 CISG). Art. 58(1) CISG specifies that if the buyer is not obliged to pay the price at a fixed time, the buyer must pay the price when, as required by the contract and the Convention the seller puts at the goods or the documents representing the goods at the buyer's disposal.

The will of the parties determines the time the price is due; by default, art. 58 CISG applies. It is also applicable to the place of payment (Wiegand, Die Pflichten des Kaufers and die Folgen Ihrer Verletzung, in Wiener Kaufrecht, 1991, p. 153; Bucher Überblick über die Neuerung des Wiener Kaufrechts, dessen Verhältnis zur Kaufrechtstradition and zum nationalen Recht, in Wiener Kaufrecht, 1991 p. 34).

As per article 59 CISG, the buyer must pay the price on the date fixed in the contract or resulting from the contract or the Convention without any demand or other formality on the vendor's behalf.

            (c) If the goods do not correspond to the order placed (lack of conformity of goods with the contract in terms of quantity, quality or type: art. 36 et seq. CISG), the buyer may exercise the rights and claim the remedies provided in art. 45 et seq. CISG. Buyer is allowed a reasonable delay for returning the goods or at least to notify the seller as to the non-conformity of the goods implying that buyer must have checked the goods upon receipt.

If buyer defaults in providing notice of lack of conformity, the buyer is deprived of the right to remedy the lack of conformity (Neumayer/Ming, op. cit. no. 1 et seq. art 39).

            d) In this case, the [Buyer] was content to invoke the delay in delivery of the first order of winter. This delay is not excused in that [Buyer] could not take advantage in justifying a payment different from the corresponding bill.

Otherwise, even if one supposes that the delay was not the fault of the [Buyer], the [Seller] had handed over the goods, be it at the French port or to an independent carrier in charge of delivery. The risk consequently passed on delivery of the goods by handing them over to the carrier (cf. consid 5a). That being the case, the [Seller] should not bear the eventual consequences of delay by the transporter.

Finally, the [Buyer] did not show any reservation over the quantity and quality of the goods delivered. [Buyer] accepted them without any notice of complaint. [Buyer was thus liable to pay the price claimed by the [Seller].

            e)  aa) The CISG does not specify the currency of the contract. Under Swiss jurisprudence, the currency of payment is determined by the law to be applied as the governing law of the contract to the extent not governed by the CISG (RVJ 1999 p. 227 consid 3c). In accordance with article 118(1) LDIP, this is based on art. 3 of the Hague Convention of 15 June 1955 on the Law Applicable to International Sales of Movable Goods.

The rules of conflict of law are equally applicable if the designated law is that of a Non-Contracting State (Schwander, Internationales Vertragsschuldrecht-Direkte Zuztändigkeit and Objektive Anknüpfung, in Beiträge zum neuen IPR des Sachen- Schuld-, und Gesellschaftsrecht, in Festschrift für Rudolf Moser, 1987 p. 89).

Article 3(1) of the Hague Convention provides that. in the absence of a designation of the governing law by the parties, in accordance with the conditions set forth in article 2, the contract of sale is governed by the internal laws of the country of the habitual residence of the seller when he took the order. If the order was received by an establishment of the seller, the sale is governed by the internal laws of the country where the establishment is situated (Art 7(2) CISG and 118 LDIP, Neumayer/Ming op. cit. no. 4 ad art 54; RVJ 1999 p. 227 consid 3C). The currency in which payment is to be made is determined in an identical manner (Herber/Czerwenka Internationales Kaufrecht, 1991, no. 6 ad. art. 53). When Swiss law is applicable, art. 84(2) of the Swiss Code of Obligations allows the debtor to make payment in Swiss francs on the day of maturity even if the credit is made out in foreign currency.

This norm governs exclusively debts stipulated in foreign currency and payable in Switzerland. It follows that this disposition does not enter in line of account when a debt must be cleared abroad and recovered in Switzerland; in effect, by this hypothesis, the debtor does not have, in place of payment, the domicile or he can be sued consequently and validity (RVJ 1991 p. 394 consid 36).

               bb) In this nature, the rules of dispute lead to the application of French law. In fact, nothing indicates that the [Buyer] has a Swiss address; apparently the orders were received at her establishment in France.

               cc) On the other hand, the prices figures in the orders and the bills shown were in Euros, currently legal in France. The summary bill generated on 23 September 2002 by the [Seller] mentions the amounts in Euros since the [Seller] just has not credit in Euros, she cannot justly claim the equivalent in Swiss francs. The [Buyer] owes, therefore, 8,970 Euros 10 to the [Seller] (577 Euros 02 + 2,698 Euros 26 + 758 Euros 80 + 4,936 Euros 02).

      6.  a) In terms of article 78 CISG, if a party does not pay the price or any other sum that is in arrears, the other party has the right to interest on that sum without prejudice to any claim for damages recoverable under article 74 CISG. The rate of interest must be determined by the rules of conflict of laws (art. 7(2) CISG; RVJ 1995 p. 164 et seq.). The reasoning is identical to that in 5e for the currency of payment.

The application of the rules of conflict of laws lead also to French law. By terms of article L 313-2 of the monetary code and French finance, the legal rate of interest is fixed, in all matters, by decree for the duration of the civil year. Decree no. 159 of 8 February 2002 (appearing in the official journal of 10 February 2002) fixed a legal rate of interest at 4.26% for the year 2002.

            b) In this nature, the bills 02/51, 02/55, 02/60 do not show delay in payment. The goods were delivered since their handing to the independent carrier (article 31(a) and 58 CISG consid 5a and 56).

The exhibition of each of the three bills was therefore due on the handing over of the goods to the carrier. The goods corresponding to bill 02/51 were taken at the French port on 28 January 2002; the bill was not generated till 5 February 2002; and the [Seller] claimed interest after ten days of that date. The related interest thus started only on 15 February 2002 (art. 66(5) CPC). The goods corresponding to bill 02/55 were taken before 15 April 2002; this date corresponds simply to the declaration at French customs. In this case also, the [Seller] claimed payment of interest from ten days after the generation of this bill, i.e., due from 21 April 2002. The same applied to the goods corresponding to bill 2/60, the date of 17 May 2002 being that of declaration at customs. The goods having being taken in charge before, interest was levied from 25 May 2002.

Concerning bill 2/65, generated on 2 September 2002, the condition of payment laid out a deposit in thirty days. Interest was levied from the next day after the day of maturity, i.e., 3 October 2002.

No rate of interest was specified for the delay. The legal rate of interest of 4.26% was therefore applicable.

      7.  a) The court, decreeing action in recognition of debt also announced binding levies on the opposition for a fixed sum obligatorily in Swiss francs. It also checked at the same instance the regularity of change affected by the following credit (RVJ 1991 p 394 consid 4 and cited references). As per article 67 ch 3LP, a credit must be levied in Swiss francs, towards establishing need for continuous as per federal jurisprudence.

The conversion to Swiss francs of the credit generated in foreign currency is fixed by the day's rate of the requisition of continuance. (Gilliéron, Commentaire de la loi fédéral sur la poursuite pour dettes et la faillite, 1999, no. 60 ad art. 67; RVJ 1991 p. 394 et seq. and cited references).

            b) In this sort, the summons of prosecution/pursuance/continuance occurred in the end of October of 2002. The rate of exchange of Euro to Swiss francs was 1.46480 on 31 October 2002. The exact sum for which the fine/levy could be pronounced was raised to 13,139 francs 40 [in detail 845 fr. 20 (bill 02/51 converted to Swiss francs) + 3,952 francs 40 (bill 02/55 converted to Swiss francs) + 1,111 fr. 50 (bill 02/60 converted to Swiss francs) + 7,230 francs 30 (bill 02/65 converted to Swiss francs).].

            c) Consequently, the final fine was declared to be 845 francs 20 with interest at 4.26% from 15 February 2002; at 3,952 francs 40 with interest at 4.26% from 21 April 2002; at 1,111 francs 50 with interest at 4.26% from 25 May 2002' and at7,230 francs 30 with interest at 4.26% from 2 October 2002.

      5.  a) The [Seller] would receive the earnings of the case; the charges and expenses were put in the [Buyer]'s account, who yielded (art. 252(1) and 260(1) CPC). Their calculation was based on principles established by LTar.

In terms of article 14(1) LTar, for civil disputes of pecuniary sort of value 8,001 francs to 20,000 francs, the emolument is fixed between 1,000-3,000 francs. In case of judgment of default, the art 12(1) LTar allows the emolument to be proportionally reduced. In regards to legal value of this nature and the average difficulty of business, in the same way as default by the [Buyer] in the steps of the first advance, the charges of justice were fixed at 550 francs pre levied ed in the advances rendered by the [Seller] the rest. 600 francs were restored to the [Seller]; the [Buyer] would pay, consequently, 550 francs to the [Seller] under the head of reimbursement of advances.

            b) Parties represented by attorneys have the right to expenses. These are fixed globally and include also the indemnity which the party can claim as its attorneys' fees.

In regards to the average difficulty of the case, dignity of labor and time dedicated to the case and in steps of the procedure in which the default was incurred, the honorarium of the [Seller]'s attorneys was fixed at 1,200 francs (including disbursement). The [Buyer], consequently, would pay the [Seller] an indemnity of 1,200 francs under the head of expenses.

In this case

Default judgment

  1. [Buyer] is obligated to pay the [Seller]:

    -      577 Euros 02 with interest at 4.26% from 15 February 2002.
    -   2,698 Euros 26 with interest at 4.26% from 21 April 2002.
    -      759 Euros 80 with interest at 4.26% from 25 May 2002.
    -   4,396 Euros 02 with interest at 4.26% from 3 October 2002.

  2. The opposition formed towards authority of payment in the suit 61935 is bindingly levied as:

    -      845 Euros 20 with interest at 4.26% from 15 February 2002.
    -   3.952 Euros 40 with interest at 4.26% from 21 April 2002.
    -   1,111 Euros 50 with interest at 4.26% from 25 May 2002.
    -   7,230 Euros 30 with interest at 4.26% from 3 October 2002.

  3. The charges of justice of 550 francs are put in the account of [Buyer].

  4. [Buyer] is obligated to pay [Seller] an indemnity of 1,200 francs under head of expenses and 550 francs under the head of reimbursement of advances.

So judged at Sion, 19 August 2003.

IN THE NAME OF THE COURT

The Presiding Judge                              Ad hoc Clerk of the Court

Dispatched as legal document, the 19 August 2003 to:

-  Me. Stephane Riand, Advocate at Sion
-  Me. Angelique Sainz, Montana Vermala

Appeal of verdict (art. 108 CPC)

The attention of the defaulting party is drawn towards the fact that they may appeal for relief from the current verdict within ten days from the notification summoning/serving writ to the opposite party before the judge instructing the case towards administering/settling/adjusting the charges of procedure including a setting of relief and being admitted to follow the case. In case of default of the required party (Plaintiff [Seller]) in the relief hearing, the verdict becomes binding. If the application for relief is admitted the case is recovered in the state found when the defaulting party had stopped pursuing it.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, [Seller] L..., headquartered in France, is referred to as [Seller] and [Buyer] S... of Switzerland is referred to as [Buyer]. Monetary amounts in the currency of Switzerland (Swiss francs) are indicated as either [CHF] or [franc]; monetary amounts in European currency are indicated as [Euro].

** Amrita Chadha, currently pursuing Law in the final year from Guru Gobind Singh Indraprastha University, Delhi, India.

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