Slovak Republic 20 October 2005 Supreme Court of the Slovak Republic (Polyethelene case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/051020k1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 2 Obo/219/2004
CASE HISTORY: 1st instance Regional Court Zilina 29 March 2004 [reversed and remanded]; 3d instance Regional Court Zilina 8 January 2007
SELLER'S COUNTRY: Austria (plaintiff)
BUYER'S COUNTRY: Slovak Republic (defendant)
GOODS INVOLVED: Polyethelene
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
14A [Criteria for an offer (basic criterion intention to be bound in case of acceptance): definiteness of key conditions]; 58A [Time for payment: buyer to pay price when goods placed at buyer's disposition]
14A [Criteria for an offer (basic criterion intention to be bound in case of acceptance): definiteness of key conditions];
58A [Time for payment: buyer to pay price when goods placed at buyer's disposition]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Slovak): Click here for Slovak text of case
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
20 October 2005 [4 Obo 219/2004]
Translation [*] by Juraj Kotrusz [**]
The Supreme Court of the Slovak Republic deciding in a panel in the case of Plaintiff P. G. D., [Seller], with its registered office in S.,M.., Republic of Austria, represented by attorney JUDr. R.S., versus Defendant F., spol. s r.o. [Buyer], with its registered office in D. S., [Slovak Republic], represented by attorney JUDr. M. B., regarding payment of 6,673.21 Euro [EUR] and appurtenances, on appeal of the [Seller] against the judgment of the Regional Court in Zilina of 29 March 2004, rec. no. 22 Cbm 1/02 - 127,
h a s d e c i d e d a s f o l l o w s:
The challenged judgment of the Regional Court in Zilina of 29 March 2004, rec. 22 Cbm 1/02 - 127 is cancelled and the case is returned to the Regional Court for further proceedings.
The Court of First Instance dismissed the action for payment of 12,468.36 Euro [EUR] and appurtenances in the challenged judgment and granted to the [Buyer] the right to payment of reimbursement of costs of the proceedings amounting to 58,330.- Slovak koruna [Sk]. The Court reasoned its decision by stating that the [Seller] claimed its right to payment of the purchase price for the goods delivered, as it was billed by invoices no. 40108033 and no. 40108044. As the dispute emerged from international trade, the relationship is governed by the UN Convention on Contracts for the International Sale of Goods. The [Seller] was obliged to prove in the proceedings that the parties to the proceedings concluded a contract of sale in accordance with articles 14 to 24 of the Convention and that its right to payment of the purchase price actually accrued, i.e., that the goods were actually delivered. The [Seller] was not able to rebut the assertions of the [Buyer] that the goods were never delivered to it. Since the [Seller] did not satisfy the burden of proof, the Court dismissed its action.
The [Seller] filed an appeal against the judgment. The [Seller] asked the Appellate Court to change the judgment or to cancel the judgment and return the case to the Regional Court for further proceedings. The [Seller] stated in the appeal that it concluded the contract of sale with the [Buyer] in an oral form for delivery of goods as specified in the invoices. As evidenced by Witness M., the [Buyer] personally took possession of the goods and carried them from the premises of the [Seller]. Invoices no. 40108033 and no. 40108044 of 30 and 31 August 2001 were delivered to the [Buyer]. This was confirmed also by the witness Mr. S., a former executive of the [Buyer]. The invoices were drawn at the day of handing over of the goods and at the same day they were delivered to the [Buyer] prescribing the due date on the 30th day after their receipt.
The Court did not respond to the motion of the [Seller] to interrogate Mr. K, a former partner and executive of the [Buyer], who could have ascertained the factual circumstances about the concluding of the contract and about delivery of the goods. The [Seller] acquired from Mr. K customs declarations which describe the goods and evidence fulfilling the customs duty and handing over the goods to the [Buyer].
The [Buyer] asked the Appellate Court in its motion to uphold the challenged judgment as correct, since in international trade, the claim is not based on a drawn invoice but on a concluded contract and its actual performance which have to be evidenced. Since the [Seller] so far did not present any such evidence, beside the abovementioned invoices, the Court of First Instance proceeded correctly when dismissing the action. The Court correctly investigated the factual circumstances of the case when referring to the testimony of Witness S. and the letter of 18 December which evidences dispatching of the sample goods to Ukraine.
The Supreme Court of the Slovak Republic as the Appellate Court (sec. 10 part 2 of the Slovak Civil Procedure Code - hereinafter referred to as "CPC") tried the appeal under sec. 214 part 1 CPC and found that the appeal was justified.
The object of the appellate proceedings was payment of 12,468.36 EUR representing the purchase price for delivered goods. The parties to the proceedings did not establish jurisdiction of a foreign court and therefore Slovak courts have jurisdiction to try the case (sec. 37 of act no. 97/1963 Coll. on international private and procedural law as amended). The parties to the proceedings did not make a choice of law applicable to their contract of sale. With reference to sec. 2 of act no. 97/1963 Coll. and because of the fact that both Austria and Slovakia are contracting parties to the UN Convention on Contracts for the International Sale of Goods, the court qualified the claim of the [Seller] under the Convention.
Under article 58 of the Convention, if the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention.
In the course of the first instance proceedings, the [Buyer] repeatedly opposed the actual concluding of the contract of sale and origination of an obligation to pay the purchase price.
The Appellate Court considers the decision of the Court of First Instance, about the obligation of the [Buyer] to pay the purchase price, to be correct and in accordance with the evidence gathered and the factual circumstances investigated therefrom. Nevertheless, investigation of factual circumstances was not sufficient, since the Appellate Court received new evidence - customs declarations which were not presented in the previous proceedings from a just cause.
According to the customs declaration of 30 August 2001 and of 31 August 2001, the declarant was company G. L. S. G., V. The [Seller] is listed as exporter and the [Buyer] as importer. The customs declarations contain identifications of the goods, its unit price and weight and these data conform to the ones prescribed in invoices no. 40108033 and no. 40108044. This fact supports the argument that the goods were actually delivered to the [Buyer] which would give rise to the obligation of the [Buyer] to pay the purchase price. Since the further investigation cannot be performed by the Appellate Court without undue delay, the Supreme Court of the Slovak Republic cancelled the challenged judgment under sec. 221 part 1 CPC and returned the case to the Court of First Instance for further proceedings (sec. 221 part 2 CPC).
The Court of First Instance shall decide in the new proceedings also about reimbursement of costs of the appellate proceedings.
Instruction: An appeal against this decision is not admissible.
Bratislava, 20 October 2005.
JUDr. Beata Minicova
Chairman of the Panel
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Republic of Austria is referred to as [Seller] and Defendant of the Slovak Republic is referred to as [Buyer]. Amounts in the currency of the Slovak Republic (Slovak koruna) are indicated as [Sk]; amounts in currency of the European Union (Euro) are indicated as [EUR].
** Juraj Kotrusz is a Slovak lawyer who studied law at the University of Trnava, Slovakia, and at the Hague Academy of International Law. He is the Editor of the CISG Slovakia website.Go to Case Table of Contents