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CISG CASE PRESENTATION

Serbia 13 September 2004 High Commercial Court (Publications case)
[Cite as: http://cisgw3.law.pace.edu/cases/040913sb.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20040913 (13 September 2004)

JURISDICTION: Serbia

TRIBUNAL: High Commercial Court

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Pě. 6584/2004

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Unavailable

BUYER'S COUNTRY: Unavailable

GOODS INVOLVED: Publications


Classification of issues present

APPLICATION OF CISG: Court held this to be an international transaction but regarded it as a commission agreement (which is not covered by the CISG) rather than a contract for the sale of goods.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 4

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): commission agreements]

Descriptors: Scope of Convention

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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

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Serbian): Excerpt from text presented below (published at Paragraf Lex database of Serbian court decisions)

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

High Commercial Court in Belgrade

Judgment of 13 September 2004 [Pz 6584/2004]

Translation [*] by Marko Jovanovic, LL.M.
Edited by Dr. Vladimir Pavic, Milena Djordjevic, LL.M. [**]

[...]

RULING

In a situation in which the contract provides that the Plaintiff is the exclusive importer and distributor of the Defendant's publications in the territory of Serbia and Montenegro, that, upon the sale of the imported publications, the Plaintiff is entitled to a commission in the percentage determined by the contract while Plaintiff has the right to return the copies which remained unsold, the contract is not one of an international sale of goods but the one of sale by commission agency as a special form of commission agency.

REASONS FOR THE DECISION (EXCERPT)

According to the case file, the Plaintiff claims damages for the loss of profit that it has suffered due to the Defendant's breach of contractual obligations arising out of a contract of import and distribution of published material. It was not disputed by the parties that they concluded the contract on 3 January 1996 by virtue of which the Defendant gave the Plaintiff the exclusive right to import foreign publications in the territory of the Federal Republic of Yugoslavia [FRY]. Pursuant to the contract, the Defendant was the exclusive supplier and the Plaintiff was the only and exclusive distributor in the FRY. The parties also did not contest that their business cooperation, based on the contract in question, took place during 1996 and 1997, and that in the period 1998-1999 there was no business cooperation between them. It is disputed, however, whether the break of cooperation was due to the avoidance of the contract, or because the Defendant unilaterally stopped performing its contractual obligations, thus causing damages in the form of loss of profit to the opposing side, as claimed by the Plaintiff.

When deciding on the disputed question, the Court of First Instance conducted an analyses of the content of the contractual provisions and concluded that the contract in question represented a contract for the international sale of goods. Consequently, the Court of First Instance found that the dispute should be resolved through application of the United Nations Convention on Contracts for the International Sale of Goods. In the appeal against that decision, the Defendant submitted that, considering its content and the rights and obligations arising out of it, the contract in question does not represent a contract for the sale of goods. In the opinion of this Court, such submission is well founded. Bearing in mind that the disputed contract provided that the Plaintiff was the exclusive importer and distributor of the Defendant's publications in the territory of the FRY and that, upon the sale of these publications Plaintiff was entitled to a commission in the percentage determined by the contract and Plaintiff had the right to return the copies which remained unsold (this is also supported by the way in which the Plaintiff was doing business in 1996 and 1997 proven by report of an expert witness), the actual nature of the business relation in question was a commission agency, or the sale by commission agency as its special form. Therefore, the relationship in question did not have the character of sale, whereby the Plaintiff would buy all the publications of the Defendant, but rather it is a commission agency where the Plaintiff, in its own name but on behalf of the Defendant, using its exclusive right to import the Defendant's publications in the territory of FRY, was selling the Defendant's publications and on the basis of the quantity of the publications sold (which represents the imported quantity reduced for the number of the returned publications) Plaintiff was entitled to a commission which actually represented a compensation for its business efforts. Consequently, the business relationship between the parties was in the form of the contract of sale by commission agency and the Defendant rightfully asserts that the Court of First Instance made an error when qualifying this relationship as an international sale of goods.


FOOTNOTES

* All translations should be verified by cross-checking against the original text.

** Marko Jovanovic, LL.M. (U. of Belgrade) is a Doctorate student at the University of Paris 1 - Panthéon Sorbonne. Dr. Vladimir Pavic is an Assistant Professor in Private International Law and Arbitration, and Milena Djordjevic, LL.M. (U. of Pittsburgh) is a Lecturer in International Commercial Law at the University of Belgrade Faculty of Law.

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Pace Law School Institute of International Commercial Law - Last updated September 9, 2009
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