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CISG CASE PRESENTATION

Spain 31 January 2005 Appellate Court Cuenca (Live calves case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/050131s4.html]

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

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Case identification

DATE OF DECISION: 20050131 (31 January 2005)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial de Cuenca, sección 1ª

JUDGE(S): Mariano Muñoz Hernández, Orea Albares

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Unavailable

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 3 de Cuenca 25 September 2004

SELLER'S COUNTRY: Germany (presumably) (plaintiff)

BUYER'S COUNTRY: Spain (defendant)

GOODS INVOLVED: Live calves


UNCITRAL case abstract

SPAIN: Cuenca Provincial High Court (Live calves case) 31 January 2005

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/105],
CLOUT abstract no. 1040

Reproduced with permission of UNCITRAL

Abstract prepared by María del Pilar Perales Viscasillas

The case concerned the sale of live calves. The seller had delivered calves that were not of the agreed breeds and, moreover, were in extremely poor health, showing symptoms of dehydration and malnutrition, as a result of which 25 died. The seller had claimed payment of the price plus interest for late payment. The Provincial High Court, hearing the appeal, considered that there had not been a fundamental but only a partial breach. It also endorsed the interpretation of the Court of First Instance with regard to the time limit referred to article 39.1 of CISG, which it considered reasonable and fixed at 20 to 25 days. As for the question of determining the interest for late payment, the Court held that it had been determined as a result of the judgement, in application of the principle in illiquidis non fit mora.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 39(1) ; 78 [Also cited: Articles 4 ; 14(1) ; 15(1) ; 18(1) ; 23 ; 24 ; 25 ; 30 ; 38 ]

Classification of issues using UNCITRAL classification code numbers:

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

78A1 [Interest on delay in receiving price or any other sum in arrears: must sum be "liquidated"?]

Descriptors: Lack of conformity notice, timeliness ; Latent defects ; Interest

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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/respan47.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan47.htm>; see also Fuente: Aranzadi Westlaw JUR 2005\92431

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Audiencia Provincial de Cuenca, 31 January 2005
Gebrüger Foster GmbH v. Cárnicas Villacuenca, S.A.

Translation [*] by Adrián Cisneros Aguilar [**]

Edited by Guillermo Coronado Aguilar [***]

In the City of Cuenca, thirty-one January two thousand and five:

Having seen, in the filing of the motion of appeal, the writs of the Ordinary Trial No. 325/2003 originating in the Court of First Instance No. 3 of Cuenca, between:

Plaintiff Gebrüder Foster GmbH [Seller], addressed before the Court by Attorney Doña Tamara Wegmann Lecue and represented by Prosecuting Attorney [Procurator] Doña Cristina Prieto Martínez

vs.

Defendant Cárnicas Villa Cuenca, S.A. [Buyer], defended by Attorney Don Rafael Matas Cuéllar, and represented by Prosecuting Attorney [Procurator] Doña María Rosario Pinedo Ramos.

Having considered [the following facts], acting as judge authoring the opinion, Justice of the Audiencia Provincial de Cuenca [Appellate Court] Don Mariano Muñoz Hernández:

FINDINGS OF FACT

FIRST. The trial at hand was filed [before the Court of First Instance] in regards to the Claim raised by Attorney Mr. Alberto Morillas, later substituted by his colleague Mrs. Prieto Martínez, who filed [the Claim] on 25 July 2003. By writ dated the following day 28 [July], the Claim was admitted for trial, ordering the forwarding of such pleading and the notification [of the Claim] to the [Buyer], who appeared [before the Court of First Instance] represented by Attorney Mrs. Pinedo Ramos, who issued the corresponding Answer. The trial took place on 4 February and 17 March 2004.

The evidence proposed and declared relevant was presented, leaving the writs concluded for the Court to issue a decision.

SECOND. The Judge of the Court of First Instance rendered the following decision on 24 September 2004:

"Honoring partially the Claim filed by [Seller], represented by Attorney Mr. Alberto Morillas against [Buyer], represented by Attorney Mrs. Pinedo Ramos, I direct the [Buyer] to pay the [Seller] the amount of 39,495.69 €, plus legal interest, without charging any cost in this Court."

THIRD. The parties having been notified of the aforementioned decision, a motion of appeal was lodged before the Audiencia Provincial de Cuenca by [Seller]. The appeal was deemed to be raised by interlocutory decision dated 19 November 2004. The motion of appeal was opposed by [Buyer]. In accordance with the pleadings, the trial was forwarded to this Appellate Court, proceeding to the formation [opening] of the corresponding Dossier, to which has been assigned the No. 243/2004, following the legal statute of limitations which was observed, pursuant to article 465 of the Civil Procedure Act in force (RCL 2000, 34, 962 and RCL 2001, 1892). Justice Mrs. Orea Albares has been commissioned by the General Council of the Judiciary Power to sit on the Appellate Court.

FOURTH. The Appellate Court deems reproduced the factual background and the evidence presented in all which is not against the decision stated herein.

LEGAL GROUNDS

The legal reasoning of the Court of First Instance is ACCEPTED.

FIRST. The Claim is based on the existence of an international sale of live male calves with the Plaintiff as seller and the Defendant as buyer, through the intermediation of Don Pedro, who acted as representative for Asesoramientos Ganaderos S.L. In the Claim, it is stated that which was agreed upon was the sale of 130 Simmental breed calves, at a price of 354 euros each, and sixtuy-eight calves of mixed breed at 319 euros each: of a total value of 67,712 euros, for which a corresponding invoice was issued. The value of the invoice plus interest is claimed. The [Buyer] opposed this claim, alleging the lack of legal capacity, as the sale was made by Asesoramientos Ganaderos SL and that the [Seller] was not a party to the agreement.

The [Buyer] opposed as the main argument of the [Seller]'s claim, that the payment of only 31,358.44 euros is viable as the price of the calves in fact delivered (148 Holstein-Friesian calves, called in Spain pintos, at 195 euros each, and fifty calves of a mixed breed between Simmental and others [of viable breeds] at 315 euros each), at an overall price of 44,610 euros, from which should be discounted the price for twenty-five dead animals and a maintenance cost of 13,251.56 euros, a net amount of 31,358.44 euros.

The First Instance Judge pointed out in his decision the facts he deemed relevant and proved by a joint assessment of the evidence contained in the writs and applied to the dispute the United Nations Convention on the International Sale of Goods, signed in Vienna on 11 April 1980 (RCL 1991, 229 and RCL 1996, 2896). He ruled on the opposing positions of the petitioners in the manner indicated. The [Seller] has appealed, claiming the existence of error in the assessment of the evidence during the issuance of the decision and an improper application of articles 39(1) and 78 of the Vienna Convention. [Seller] also asks this Appellate Court to allow the right for appeal, to decide on the revocation of the contested decision and to render, in its place, another decision by which the [Buyer] is sentenced to pay the amount of 67,712 euros, plus the interest since 10 September 2002, pursuant to article 78 of the Vienna Convention, plus the legal interest and the costs incurred in the proceedings at the Court of First Instance and the Appellate Court.

The [Buyer] limits itself to rejection of the [Seller]'s claims, denying that there is an improper assessment of the evidence or any of the aforesaid issues claimed by the [Seller], also asking the Appellate Court to reject the appeal and confirm the decision of the Court of First Instance and to impose the costs of the Court on the [Seller].

SECOND. According to what has been mentioned, when answering [Seller]'s Claim, [Buyer] alleged a lack of legal capacity of the [Seller], since the sales contract entered into involved Asesoramientos Ganaderos SL, through its representative Don Pedro, and the [Buyer], who replied to the offer published on the Internet by Asesoramientos Ganaderos SL, enterprise whose undertaking is the import and export of cattle, with the reply to the offer made by phone. The [Buyer] added that, even in the event that Don Pedro had acted as a representative for the [Seller], it would have done so in his own name, thus concealing the existence of a mandate. Therefore, the [Seller] would have no basis for an action against the [Buyer], despite the fact that the latter has dealt with the [Seller] in regards to the payment, which was done only as a favor to Asesoramientos Ganaderos SL. As to the substantive argument in the case at hand, the [Buyer] claimed the exceptio non rite adimpleti contractus [a motion to dismiss based on the existence of a breach of a contractual condition precedent], with a deduction of the amount of the price for the damages and losses incurred by the [Buyer] for the defective compliance of the contract by the [Seller]. Taking into account the price really agreed upon less deductions, that is, that of the price of the twenty-five calves killed by disease, along with the expenses incurred until their incineration and the supply of the maintenance cost for the 173 animals left, thus leaving a net amount of 31,358,44 euros, which is the amount that, in its case, should be paid by the [Buyer] to the [Seller] and which the [Buyer] stated that it was prepared to pay, holding this amount in the Court's Deposits and Consignations Account.

In the decision issued by the Court of First Instance, it is established that the purchase of calves took place between the [Seller] and the [Buyer], that they had already had business relations in the past, and that the corporation Asesoramientos Ganaderos SL only acted as intermediary between the two parties. As for the main argument of the case and as a result of the joint assessment of the evidence, the First Instance Judge stated that the offer made by Mr. Pedro, in his role of intermediary to the [Buyer] is the offer that appears in the fax communication sent to the [Buyer] on 17 August 2002. The Appellate Court concludes that this offer was for 200 calves, of which 40-50 were pure Simmentals at 350 euros each and the rest of Polish cross-breed -- Charolaise-Limousine-Simmental-Polish Red berrenda [deer-like wild mammal found in the Mexican highlands] -- blood at 315 euros each.

In the offer, it is discussed to load the animals at the place of departure on 24 or 25 August, in order to have them delivered to the port of destination the next Tuesday or Wednesday. The First Instance Judge stated in his assessment of the evidence that the animals arrived at Cuenca on 10 September 2002, with an employee of the cattle ranch signing the CMR (International Carriage of Goods by Road) for the reception of 198 calves, which amounted to an overall weight of 16,850 kilograms. The First Instance Judge stated that, according to the certification made by the cattle ranch veterinary, fifty of those animals were of a mixed breed between breeds of meat-aptitude and Simmental and the rest of the 148 animals were of Holstein-Friesian breed, called pintos in Spain and of dairy-aptitude. Of those animals, twenty-five died between October 2002 and June 2003; these were incinerated. The First Instance Judge acknowledged that, as manifested by Mr. Pedro regarding the controls to which animals in international sales are subject to -- controls of a sanitary kind -- without having them extended to the breed of the animals, thus [the Judge of First Instance] does not acknowledge as true that the breed of the animals referred in the bill of lading are the ones in fact delivered. We can add to that that in the CMR there is no reference made to breeds, but simply to 198 live calves, according to the translation accompanying this document; thus it was made clear during the proceedings that [the delivery] was of calves, despite what is stated in the document [the B/L.]. Regarding the breed of the calves, the First Instance Judge relied on the report sent by the veterinary Mr. Alberto, with the aforesaid contents.

Applying the United Nations Convention on the International Sale of Goods, signed in Vienna on 11 April 1980 (RCL 1991, 229 and RCL 1996, 2896), the First Instance Judge, on admitting the veterinary's report, deemed reasonable a period of 20-25 days for the examination of the animals and their hygienic-sanitary conditions. For the calculation of the debt, the decision of the Court of First Instance points out that of the twenty-five dead animals, only those which did not make it through the period from October to December 2002 ought to be considered for the compensation claimed by the [Buyer], which amounts to 5,114.31 euros, without admitting the cost of maintenance of the 173 remaining calves which should be borne by the [Buyer], and resulting in a price to be paid by the [Buyer] to the [Seller] of 39,495.69 euros, according to the offer made by the [Seller]. The First Instance Judge rejected the [Seller]'s claim for interest accrued in accordance with article 78 of the Vienna Convention arguing that the amount due was not determined until the moment in which the decision was rendered.

The [Seller] lodged an appeal against the decision of the Court of First Instance, with the claims that have already been mentioned, arguing that the First Instance Judge suffered from a factual mistake when assessing the evidence, as well as the violation [by the Judge of First Instance] of substantive provisions. It is the [Seller]'s position that the Claim must be legally re-appraised and that the costs ought to be imposed on the [Buyer].

   -    The first of [Seller]'s grounds for appeal has to do with the breed of the animals involved in the contract, which the First Instance Judge established by acknowledging the certificate presented by the [Buyer]'s veterinary, which was contested and, according to the [Seller], lacks objectivity, [Seller] alleges that there was an improper assessment of Don Pedro's expert-witness evidence regarding the breed and aptitude of the delivered animals, of which the relevant explanations are detailed in [Seller]'s Motion of Appeal. On the aforesaid evidence it is attributed to Mr. Pedro, apart from the quality of intermediary in the sale, the quality of veterinary, the latter without any evidence in the records of the proceedings.
 
   -    Secondly, it is manifested in the Motion that the decision does not place enough importance to the weight of the animals delivered, in accordance with their breed and quality, since they arrived with an average weight of 85 kilograms, which corresponds to the offer made in document no. 1 of the Written Answer to the Claim. The [Seller] argues that the weight of the calves has been erroneously assessed by the Judge of the First Instance, who established the calves' average weight at 85 kilograms and, nonetheless, states that the breed of the calves mainly delivered is of the Friesian or pinto breed, which is of a considerably inferior price in aptitude and quality, and, as is argued by the [Buyer], in order to pay a lower price, while the delivered animals were, in fact, 130 Simmental calves and sixty-eight Polish crossed calves, amounting a price to be paid of 67,712 euros. As for the compensation established in the decision for the animals that were dead between October and December 2002, the [Seller] alleges that with [such compensation] the probatory value of the documents contained in the writs is prejudiced, as well as the witness Mr. Pedro's statement, who confirmed the transport's suitability and the three veterinary controls performed during such transport. The statement made in the decision regarding the defective sanitary conditions in which some of the animals arrived is considered to be erroneous, as pointed out in the Motion of Appeal; in view of the documentation presented and Mr. Pedro's statement, also outlined in the Motion of Appeal, that the first death of an animal took place twenty-one days after the arrival and given the lack of presentation of autopsies, it cannot be considered as proven that the death of the calves had been due to a chronic disease attributable to the seller.
 
   -    With respect to the violation of substantive provisions, the [Seller] argues that the reasonable time established in article 39(1) of the Vienna Convention (RCL 1991, 229 and RCL 1996, 2896) should not be fixed at 20 or 25 days to notify of the lack of conformity of the animals, with the veterinary having examined the condition of the animals two days after their arrival. And regarding the claim for interest, the [Seller] considers that the Court should follow that which is established in article 78 of the Vienna Convention, thus [taking into account only] the net price. Therefore, article 576 of the Civil Procedure Act (RCL 2000, 34, 962 and RCL 2001, 1892) is not applicable. The court costs of the First Instance should be imposed on the [Buyer], as pointed out in the Motion [of Appeal].

The [Buyer] opposed these arguments, denying that the Judge [of First Instance] had improperly assessed the evidence, since the proven facts had been obtained by the Judge of First Instance, thus not deducing them from a concrete document or means of proof, as the [Seller] claims, but from a joint and detailed assessment of the evidence. [Buyer] alleges that the [Seller] seeks to substitute objective and impartial criteria of the Judge of First Instance for the subjective and interested criteria of the [Seller]. The [Buyer] opposes the argument that a mistake in the decision can be derived from a statement of Mr. Pedro, since, apart from the fact that the [Seller] considers such statement in a biased and interested way, it is related to an intermediary, agent at account of the [Seller], from which the agent, Mr. Pedro receives a retribution in accordance to the sale results and the payment of the price by the [Buyer], thus seeming evident the interest of the witness in the case at hand. Even despite that, Mr. Pedro admitted that the bill's price is not correct and that the price indicated in the documents presented at the border do not fit that which was actually delivered, [Seller] not having delivered any pure Simmentals with the remaining animals pintos or a mix of Holstein-Freisians.

In response to [Buyer]'s allegations, the [Seller] argues against the prevalence of the independent veterinary of the cattle ranch and the Judge of First Instance's allocation of the price offered to each one of the breeds. However, the [Buyer] points out that if the mixed breed was that good, it would not have a price inferior to the pure breed and, in any event, the agreed price should be upheld.

Regarding the weight of the animals, the [Buyer] points out that, according to the offer, the mixed Polish calves had to arrive weighing at least 80 kilograms and the German pintos at least 76 kilograms each, while if one took into account what is claimed by the [Seller] the Simmentals had to arrive with a weight between 92 and 95 kilograms. The [Buyer] also refers to the condition of the animals at the time of their arrival at the cattle ranch, without making Mr. Pedro's biased testimony prevail over that which was certified by the veterinary. The [Buyer] denies that there had been a failure to comply with the notice provisions contained in the Vienna Convention, as [Seller] claims; the [Buyer] alleges that, after his arrival, Don Gabino manifested his disapproval [of the goods delivered], which was reiterated with the receipt of the bill by which the [Seller] sought to ask for the payment of the price of breeds which were not the breeds that were delivered.

And the interest must be established in the decision for the liquid debt, according to what the [Buyer] states, and the court costs should be those fixed in the First Instance decision rendered.

THIRD. Article 4 of the Vienna Convention (RCL 1991, 229 and RCL 1996, 2896) provides that the CISG regulates the formation of the contract of sale and the rights and obligations of the seller and the buyer derived from such a contract. Regarding the formation of the contract, article 14(1) provides that the proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. According to article 15(1), an offer becomes effective when it reaches the offeree. Article 18(1) adds that [any] statement made by or other conduct of the offeree indicating assent to an offer is an acceptance.

In the case at hand, the [Buyer] assented to a generic offer from Asesoramientos Ganaderos S.L., which, according to a decision consented by the former acted as intermediary, making the generic offer concrete with the communication [sent by] Mr. Pedro to the [Seller] in the sense that, on Sunday 25 August 2002 at most as a loading date of the animals, around forty to fifty top-quality pure Simmentals would be delivered to the [Buyer], weighing 92-95 kilograms each at the date of departure, at 350 euros each, with the rest being mixed Polish with Charolaise-Limounsine-Simmental-Polish red berrenda blood, of excellent quality, at 315 euros each calf. The date of delivery at Cuenca was fixed for the next Tuesday or Wednesday. For reasons not explained in the record, 198 calves arrived at Cuenca on 10 September 2002.

During the proceedings, it has been argued that the prevalence that ought to be given to that which is manifested for the testimony by Mr. Pedro or by veterinary Don Alberto whose labor dependence on the [Buyer] is not proven in the records. The veterinary Don Alberto indicated that he works for enterprises that supply products to the cattle breeder industry and, therefore, is in charge of the sanitary control of the animals within such facilities. Although the First Instance Judge did not admit the disqualification of Mr. Pedro as a witness in order to [discuss] the [Seller]'s legal standing, by corroborating Mr. Pedro's testimony with the documentary evidence presented, when the Judge of First Instance confronted what was stated by Messrs. Pedro and Alberto regarding the breed of the calves received by the [Buyer] at its cattle ranch in Cuenca, it gave full probatory value to the opinion provided by the veterinary Don Alberto. When testifying during the trial Mr. Pedro said that what was agreed upon was the sale of calves, from which 50% were of mixed breed and the rest Simmentals, but Mr. Alonso notified him that there were more Simmentals coming, around 75%, with Mr. Gabino replying to Mr. Alonso that would be all right if the new Simmentals were of the agreed quality. As a result, Mr. Pedro traveled to Cuenca, where he saw that mixed Simmentals with fleshy breeds were being delivered, calves which were much better to fatten, thus 75% were Simmentals and the crossed calves were mixed with the Simmental breed.

Having gotten to this point, the Appellate Court agrees that the prevalence of the certification made by the veterinary Don Alberto regarding the breed of the animals delivered, claimed by the [Buyer] and accepted by the First Instance Judge, shall be accepted. As it has been thoroughly proven, and even recognized by Mr. Pedro, he intervened in the sale in the [Seller]'s name, which had to pay the corresponding percentage fee, without such payment being up to the [Buyer] to make. From that, can be inferred Mr. Pedro's interest in the attainment of the highest price possible for the sale with the consequence of a higher percentage fee. In any event, the agreement of a change in the breed of the animals to be finally delivered from Poland to Cuenca has not been proven, nor has there been a communication sent to Don Gabino or to the representative of [Buyer] regarding a modification of the object of the sales contract, when such a communication could have been made rather easily by fax or telegram, especially if we take into account the enormous delay in the delivery of the animals. The truth is that the [Seller] did not uphold the terms of the contract and, as is derived from the certification [made] by veterinary Don Alberto, the [Seller] instead of delivering the animals agreed to be delivered, delivered 148 pinto calves, which according to the offer that was [made] had a price of 195 euros each, as well as fifty crossed-breeds with fleshy aptitude and Simmentals, whose contract price was established at 315 euros each. The vague reasons given by Mr. Pedro when declaring during the trial regarding the excellence of the animals delivered and their superior price are not worthy of acceptance, all the more because, as has been stated, those were not the animals agreed upon, and the aforementioned references to the interest of Mr. Pedro in the case at hand, stated when referring to the sanitary conditions of the calves by saying that such calves were fit, except for two or three that had coughs.

Article 30 of the Vienna Convention (RCL 1991, 229 and RCL 1996, 2896) provides that the seller must deliver the goods agreed upon in the contract, which in the case at hand were forty to fifty pure Simmentals and the rest of crossed breed, with the [Seller] being bound to this offer since, even though there is no written acceptance by the buyer to the offer, the seller itself admits the reception of such communication from Mr. Pedro on 17 August 2002 and, therefore, the contract was concluded as provided in articles 23 and 24 of the Vienna Convention.

It is obvious that, contrary to what is stated in [Seller]'s Motion of Appeal regarding the breed and aptitude of the animals, the First Instance Judge has not erred with respect to the breed of the animals delivered to the [Buyer] thus the first ground for [Seller]'s appeal shall be rejected.

It must be clear that the [Buyer] did not intend to seek protection under article 25 of the [Vienna] Convention when it answered the judicial claim. According to this provision, a breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. Since this fundamental requisite is not present in the case at hand, the [Buyer] in its arguments alleges a partial breach of contract by the [Seller] which has a bearing on the payment for what was in fact delivered.

It is worth seeing in the Supreme Court decision dated 14 July 2003 (RJ 2003, 4635) that the exceptio non rite adimpleti contractus should be considered taking into account the actual circumstances of the case, since, although the fundamental breach, which cause the exceptio non adimpleti contractus, does not present problems as to the valorization of its effects as a legitimate cause of contract avoidance, the partial breach demands to assess more thoroughly in the instance its nature and its repercussion of the economy of the contract, for the success of such exception of partial contractual breach is subject to the defect or defects to be of certain importance in relation to the end pursued and with the accessibility or difficulty of its reparation [of the breach], thus making it improper to satisfy the other party's interest to the contract.

In this order of ideas, it is clear that an offer was made to the [Buyer] and that [Buyer] accepted the acquisition of calves for their exploitation devoted to their fattening; thus it was not the same for the [Buyer] to receive one breed or another, much less if the animals received were mostly of dairy aptitude and, as the veterinary Don Alberto certified, they showed a rather deficient sanitary condition and had symptoms of dehydration and malnutrition, which provoked the appearance of infectious respiratory and digestive processes generating chronic disease and elevated mortality. Since the [Seller] did not comply with the contract as to the agreed breed of the calves and the standard of quality offered, it is clear that that the aforesaid exception was correctly admitted, though not sustained by the Judge of First Instance.

FOURTH. From what has been manifested so far, [Seller]'s claims contained in the Motion [of Appeal] regarding the weight of the animals delivered can be rejected. This is a matter of secondary importance in relation to the breeds of the animals. The Court is not able to accept the [Seller]'s claims that what is essential to determine the breed of the animals and their subsequent aptitude is their weight, much less the Court cannot accept the technical reasons that the [Seller] states in its Motion of Appeal, as they lack support in the corresponding experts' opinions. Contrary to what the [Seller] argues, the calves delivered by it had not served the [Buyer]'s needs, not only because they were not of the agreed breeds, but also because of the deficient condition of the animals delivered, which provoked the death of 25 of them, even though the First Instance Judge only accepts the deaths occurred until late December 2002. Neither the quality nor the aptitude of the animals was that which was agreed upon, nor is the [Buyer] denying that the breed delivered [was the appropriate one] in order to pay a lower price. [Buyer] abides itself to what was effectively proved on that aspect during the proceedings

FIFTH. The [Seller] opposes the compensation for the dead animals that the First Instance decision recognized between October and December 2002 and it does so based on the documentary evidence provided and on Don Pedro's statement, expanding on what was declared by him regarding the transport conditions and the border veterinary controls. Apart from the already manifested reasons regarding the lack of reliability of Mr. Pedro's statements, which led to the non-acceptance of his testimony in the contested decision of what was certified by the veterinary Don Alberto and ratified in the trial, it should be noted that Mr. Pedro was not a witness to the conditions in which the transport of the animals was performed, nor of the sanitary controls, especially if we take into account that Document no. 5 on which the [Seller] relies upon has not been validated on the proceedings, despite the impugnation made by the [Buyer] when filing an exception for breach of contract and, especially, with respect to the sanitary condition of the animals which was regarded as deficient by the veterinary in charge of the cattle ranch. It is not admissible what the [Seller] states, transcribing Mr. Pedro's words to the effect that, from the moment the animals entered the [Buyer]'s facilities, such animals entered the [Buyer's] sphere of liability, as that is contrary to the possible existence of latent defects and their claim within a reasonable time, pursuant to article 39(1) of the [Vienna] Convention (RCL 1991, 229 and RCL 1996, 2896).

SIXTH. Following what has just been stated, it can be established that, contrary to what is claimed in [Seller]'s Motion [of Appeal], the decision of the Court of First Instance does not violate article 39(1) of the [Vienna]Convention (RCL 1991, 229 and RCL 1996, 2896). We reject the [Seller]'s request to correct the Judge of First Instance's understanding as to what is the reasonable time indicated in the aforementioned provision of the Vienna Convention.

Considering that the animals arrived at the [Buyer]'s cattle ranch in poor condition, as corroborated two days after receiving the calves by the veterinary Don Alberto, we do not overrule the conclusion of the Court of First Instance that a 20 or 25 day period that the Court of First Instance seemed reasonable for the [Buyer] to be convinced of the actual sanitary condition of the animals. The veterinary Don Alberto, who subjected the sick calves to medication, could not prevent the death of 25 of them, although the First Instance Judge only accepted the claim in this regard with respect to the deaths that occurred between October and December 2002, and did not accept the [subsequent damages] claimed by the [Buyer] regarding the deaths that occurred after those dates.

Consequently, this Court does not admit the [Seller]'s request. Regarding the correction of the First Instance Judge's understanding as to what the reasonable time is under article 39(1) of the Vienna Convention.

SEVENTH. The [Seller]'s claim regarding the allocation of interest must suffer the same rejection as the previous grounds for appeal, since we are not before a substantial estimation of the claim, but the amount to be paid by the [Buyer] to the [Seller] has required the timely liquidation during the contested decision. As the Supreme Court's decision of 14 July 2003 (RJ 2003, 4635) states, the principle of in illiquidis non fit mora refers to the situation of the claim of money debts in which, as the claimed amount is unliquidated, its liquidation ought to be done through the proceedings. Therefore, mora solvendi [delinquency of the obligor in complying with his obligations] cannot be appreciated, for the effects of the claim of legal interest.

This is what has happened in the case at trial; thus the [Seller]'s appeal deserves to be rejected.

EIGHT. Given the partial admittance of the Written Claim, the Judge [of the First Instance] properly applied article 394.2 of the Civil Procedure Act (RCL 2000, 34, 962 and RCL 2001, 1892) and concluded not to issue an express condemnatory decision as to the legal costs of the First Instance, which still has to be confirmed. Pursuant to articles 394.1 and 398.1 of the aforementioned Act, before the rejection of the Motion, consistent with the rejection of all the [Seller]'s claims, the court costs of the Second Instance must be borne by the [Seller].

Having seen the cited articles, as well as the other articles of general application,

WE DECIDE

To deny [reject] the Motion of Appeal lodged by the [Seller] against the decision issued by the Justice First Instance Judge of Court No. 3 of Cuenca, dated 24 September 2004, on an Ordinary Trial, under no. 325/2003, and we CONFIRM in its integrity the decision of the Court of First Instance, with the imposition on the [Seller] of the court costs derived from this appeal.

Return the original records to the Court of First Instance with a testimony of this decision for its enforcement and obtain from the Court of First Instance acknowledgement of receipt.

Enforce what is established in article 248.4 of the Judiciary Power Organic Act (RCL 1985, 1578 and 2635) and article 208.4 of the Civil Procedure Act in force (RCL 2000, 34, 962 and RCL 2001, 1892) .

Thus, by this our decision, definitely judging, we pronounce, command and sign it.

PUBLICATION. - On the same date, 31 January 2005, the aforesaid decision was read and published by the Honorable Mr./Mrs. Justice who issued it, celebrating a Public Hearing. I so certify.

PROCEEDING: Immediately after the Court proceeds to give notification of the aforesaid decision. I so certify.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellant Gebrüder Foster GmbH is referred to as [Seller] and Defendant-Appellee Cárnicas Villa Cuenca, S.A. is referred to as [Buyer].

** Adrián Cisneros Aguilar recently graduated from Universidad Panamericana Faculty of Law in México City. In 2001, he was a Universidad Panamericana Faculty of Law Academic Contest scholarship recipient. During 2002-2003, he was a Research Fellow under Dr. Salvador Cárdenas, one of the leading scholars in México in Law History. In 2003, Mr. Cisneros was a Law Clerk at the Notary Public No. 138 of México City, and in 2004, he was selected to study at McGill University Faculty of Law in Montreal, Canada, under the North American Consortium on Legal Education academic exchange program. Mr. Cisneros has also worked as an Assistant Researcher under Lic. Pavlo Avilés, translating books, ancient and recent documents from French and English to Spanish, as well as acting as Assistant Profesor in courses taught to national and foreign students. He was also a member of the Editorial Staff of Diké, the Law Faculty's student journal. Since 2005, Mr. Cisneros has been collaborating in the law firm Fonseca, Lozano y Treviño and is currently working on his Law Degree thesis.

*** Guillermo Coronado Aguilar was a participant in the 15th annual Willem C. Vis International Commercial Arbitration Moot representing Panamericana, campus Guadalajara. He is now correspondent of the Global Sales Law Project directed by Ingeborg Schwenzer and adaptor from English to Spanish of articles of the book "Commentary on the UN Convention Sale of Goods", directed by Ingeborg Schwenzer and Edguardo Muñoz. He is Legal Advisor for the law firm Coronado Figueros y Associados. S.C.

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