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CISG CASE PRESENTATION

Spain 26 July 2005 Appellate Court Cordoba [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/050726s4.html]

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

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Case identification

DATE OF DECISION: 20050726 (26 July 2005)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial [Appellate Court] de Cordoba, sección 1ª

JUDGE(S): Don Eduardo Baena Ruiz, Don Antonio Fernández Carrión, Don Pedro Roque Villamor Montoro

CASE NUMBER/DOCKET NUMBER: Sentencia No. 328/05; Rollo No. 302/2005

CASE NAME: Doña Julia v. D. Javier

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 2 de Montilla (Córdoba)

SELLER'S COUNTRY: Spain

BUYER'S COUNTRY: Spain

GOODS INVOLVED: Sales contract involving real estate


Case abstract

SPAIN: Audiencia Provincial de Cordoba, 26 July 2005

Case law on UNCITRAL texts (CLOUT) abstract no. 731

Reproduced with permission of UNCITRAL

Abstract prepared by Pilar Perales Viscasillas, National Correspondent

The buyer and the seller entered into a sales contract about real estate. The payment was to take place by instalments. After the date of the last instalment elapsed without payment, the seller avoided the contract by a notary declaration. The seller tried to get a court order evicting the buyer from the property. The buyer argued that the avoidance of the contract had not been judicially recognized.

The court held that the contract had been rightfully avoided. The court noted that a contract could be avoided after default by the other party judicially and extra judicially. In its reasoning, the court interpreted the national law making references to article 26 CISG and the European Contract Principles.

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Classification of issues present

APPLICATION OF CISG: No, dicta reference to CISG

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 26

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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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/respan43.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan43.htm>; see also Fuente: Aranzadi Westlaw

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

The CISG Translation Network

Audiencia Provincial [Appellate Court] 26 July 2005

Doņa Julia v. D. Javier

Translation by Lucia Martin

Translation [*] edited by Pilar Perales Viscasillas

The parties entered into a sale of property contract, in which the Spanish [Buyer] would acquire a rustic property from the Spanish [Seller], who would in return receive the corresponding price for selling that property. The sale was done in a private document that both parties signed in 1994, which contained a clause that specifically stated the terms, time and place in which the payment would be carried out, establishing that the last payment be made two years after the sale had been agreed to and signed by both parties.

After a series of incidents regarding the buyer not meeting the payment deadlines, and thus not complying with the terms of payment established in the contract, the [Seller] decided to terminate the contract. At this time, the [Buyer] notified the seller through the notary, in order to grant the public deed title and receive in exchange a cheque as payment for the sale of property. The [Seller] though did not accept the [Buyer’s] notarized request, and decides to request the termination of the contract through the notary in 2003, stating the reason of the termination to be the [Buyer’s] failure to comply with the terms, in time and in legal form, with regards to the form of payment specifically established in the contract, debt that added up to a larger sum than the one the [Seller] wanted to pay through the cheque.

The [Seller] filed a lawsuit to the Spanish Instance Court against the [Buyer], claiming that the [Buyer] had to receive the payment and grant the corresponding public deed title, to which the court denied all claims ruling that, because the [Buyer] had failed to comply with his obligation to pay the [Seller], it was not entitled to require that the [Seller] comply with his obligations to grant the public deed title for the sale of property carried out in a private document. The [Seller] then filed an eviction action against the [Buyer]. The Spanish Instance Court denied the claim and the [Seller] appealed.

The appellate Court said that the main issue in this dispute was whether or not the contract was terminated, and if so, did the termination of the contract have an automatic effect since the notarized requirement made by the seller to the buyer in 2003, in accordance to Art. 1504 of the Spanish Civil Code. Following and applying the doctrine of the Spanish Supreme Court with regards to Arts. 1124 and 1504 of the Spanish Civil Code, the Appellate Court established that the termination of the contract does not operate automatically, because the termination of the contract can be done both in a judicial and extrajudicial manner, not being a specific legal formality. It need only be clearly addressed to the other party, following the same system established in Art. 26 of the CISG as well as Art. 9:303 of the Principles of Lando. If there is an extrajudicial termination of the contract, if the breaching party does not agree to comply with the claims made by the non-breaching party, then the Courts should review the pertinence or impertinence of the claim. Case law from the Supreme Court establishes that

exercising the right to terminate a contract terminates the contract as soon as the right is exercised. There is no need for a judicial pronunciation that recognizes such effect. One is only necessary if the counterparty opposes the termination, an event in which the parties will have to go before a court and the court will decide if the termination of the contract is valid or not according to the legal system.” In the present case, the [Buyer] opposed the [Seller’s] termination of the contract through the notary, which means that the termination of the contract does not operate or produce any legal effects since it has not been brought up to a court to decide if the contract was terminated in accordance with the legal system.

In conclusion, this Appellate Court:

  1. Rejects the seller’s claims presented in this appeal,
  2. And denies the eviction action.

FOOTNOTES

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

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Pace Law School Institute of International Commercial Law - Last updated March 17, 2014
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