Switzerland 20 January 2006 Appellate Court Geneva (Paper products case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060120s1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: C/27176/2001
CASE HISTORY: 1st instance Tribunal de Genève 20 May 2005 [affirmed]
SELLER'S COUNTRY: France (plaintiff is seller's assignee)
BUYER'S COUNTRY: Switzerland (defendent)
GOODS INVOLVED: Paper products (visiting cards, portfolios, leaflets)
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
38A [Buyer's obligation to examine goods: time for examining goods]; 39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]
38A [Buyer's obligation to examine goods: time for examining goods];
39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1195&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (French): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1504.pdf>; 103 Schweizerische Juristen-Zeitung (14/2007) 353-356; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1195&step=FullText>
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 January 2006
Translation [*] by Luiz Gustavo Meira Moser [**]
FACTS OF THE CASE
[Buyer] is an institution organized under Swiss law, having its corporate domicile in Geneva, Switzerland. Its director is domiciled in Paris, France. [Seller] is a company organized under French law, having its corporate domicile in Boulogne-Billacourt, France. The [Seller] works with advertising supplies.
In early 1999, [Buyer]'s director asked [Seller] for a proposal for the development and printing of 1,000 visiting cards, 1,000 shirts and 1,000 advertising folders. On 16 February 1999, [Seller] sent a fax quoting 1,580 Swiss francs [Sf] for 1,000 visiting cards without taxes. [Buyer]'s director replied agreeing with the amount and warning that the invoice should be addressed to [Buyer]'s domicile, located in Geneva.
On 16 March 1999, [Seller] sent to [Buyer] a proposal for the development and printing of 1,000 shirts and 1,000 advertising folders (6 pages journal), in two versions, for the total of 48,000 Sf without taxes. Buyer promptly replied and signed it.
[Seller] submitted material tests results to [Buyer]'s director for approval. By fax on 29 and 30 May 1999, [Buyer]'s director requested some corrections to this material and then approved it for printing.
On 2 April 1999, [Buyer] sent a check on the amount of 10,000 Sf signed by [Buyer]'s director. On 22 April 1999, [Buyer] sent additional material (summaries in French and English) to be added to the advertising folders.
On four different occasions from 23 April to 24 June 1999, [Seller] attempted to deliver the goods required to the [Buyer]'s director at her own domicile in Paris.
On 30 April 1999, [Seller] addressed to the [Buyer], in Geneva, two invoices related to the requests, one amounting to 1,580 Sf and the other for 38,173.38 Sf, both without taxes, the last one including a postal order sent to Aubepierre (173.38 Sf), deducting the amount of 10,000 Sf already paid by the [Buyer]. The invoices listed the [Buyer]'s domicile as the delivery place of the goods.
Neither [Buyer], nor [Buyer]'s director forwarded to the [Seller] any report concerning delays, absence of delivery or non-conformity of the goods.
[Buyer] refused to pay the invoices and did not respond to [Seller]'s follow-up communications of 5 July, 24 August and 10 September 1999.
By mail, [Buyer] informed [Seller] that the alleged invoices were sent in error since they related to goods which had never been delivered.
In response to the [Buyer]'s refusal to pay the invoices, the [Seller] assigned the account to PEM SA on 3 January 2001, in an attempt to recover its credits.
PEM SA requested from [Buyer] the sum of 10,669.33 Sf, plus interest at the rate of 6% from 26 June 1999 (amount corresponding to the invoices of 30 April 1999, increased by transnational contractual expenses as well as the sum of 1,000 Sf under the title of intervention expenses).
[Buyer] rejected PEM SA's request, arguing that the goods had never been delivered, and demanded the right of compensation in the amount of 10,000 Sf, referencing the check sent to the [Buyer] on 2 April 1999. Furthermore, [Buyer] alleged PEM S.A's absence of standing to sue, since the assigned account related to a credit under legal discussion.
On 7 June 2002, the First Instance Tribunal de Genève recognized PEM S.A's standing to sue.
On 26 May 2005, the First Instance Tribunal de Genève rendered a decision compelling the [Buyer] to pay to PEM SA the amount of 9,520.95 Sf, plus interest at the annual rate of 5% from 1 June 1999, as well as the amount of 500 Sf to the Genève Government under the title of supplementary emoluments and procedural indemnization in the amount of 1,500 Sf.
[Buyer] asserts that during the first proceeding, the court wrongly inverted the burden of proof, and adopted an equivocal approach to the proofs during the proceeding. PEM SA, for its part, seeks the confirmation of the rendered decision.
ON THE ABOVE
1. The appeal is admissible. It has been lodged in the form and within the period of time required by the law. The Court decides on it with the right of full reconsideration. The tribunal having decided on an objection to the merits of the case, it is possible to appeal immediately.
2. The Convention of Lugano of 16 September 1988 on jurisdiction and execution of legal decisions in civil and commercial matters was ratified for both Switzerland and France. Consequently, it is applicable in casu.
3. The applicable law and the qualification of the legal relationship between the parties are determined by applying the Swiss law as the lex fori. Furthermore, the request for payment derives from an order for printed material in conjunction with an obligation of delivery. Consequently, it is a contract for the supply of goods in the meaning of art. 363 et seq. CO [*] ("Werklieferungsvertrag"; Chaix, Commentaire romand, n.18 ad art. 363 CO; Gauch/Carron, Le contrat d'entreprise, 1999, n.121 et seq.).
4. The Swiss law adopts multilateral treaties, including ones which aim at the uniformity and harmonization of substantive law. Both France and Switzerland adopted the 1980 Vienna Convention on International Sales of Goods (CISG).
5. In accordance with art. 3(1) CISG, a contract for the supply of goods to be manufactured or produced is regarded as a contract for the sale of goods, unless the party which ordered the goods undertakes to supply a substantial part of the necessary material for this manufacture or production. Therefore, the CISG is applicable in this case. (Gauch/Carron, op. cit., n. 368; Bühler, ZK, 1998, n. 38 Vorbem. ad arts. 363-379 CO; Magnus, Werner UN-Kaufrecht (CISG) in: Staudingers Kommentar zum BGB, Munich, 1993, n. 13 ad art. 3 CVIM; Ferrari, Contrat de vente internationale. Applicabilité et applications de la CVIM, Bâle-Bruxelles, 1999, p.97 ss; von Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht, Munich, 1995, n. 3 ad art.3 CISG).
6. In this particular case, on the one hand, the [Seller], which seeks the payment of the price, is entitled to prove delivery in conformity with the contract (ATF 130 III 258 cons. 5.3); on the other hand, the [Buyer] is entitled to prove the existence of a lack of conformity and the notice thereof within a reasonable time (art. 39(1) CISG) (ATF 130 III 258 cons. 5.3; Arrêt du Tribunal federal 4C.245/2003 cons. 3.1; Venturi, Commentaire romand, 2003, n.20 ad chapitre CVIM, art. 201 CO).
7. In fact, when the [Seller] carries out the delivery of the goods at the agreed place and the [Buyer] warns about it, the goods are supposed to have been delivered to the [Buyer]. It is also the time of the transfer of risk (art. 69(2) CISG; Neumayer/Ming, Convention de Vienne sur les contrats de vente internationale de merchandises, Lausanne, 1993, n.1 ad art.69 CISG; ATF 130 III 258 cons 5.3).
8. The [Seller] must then examine the goods or cause them to be examined "within as short period as is practicable" (art. 38(1) CISG; "Untersuchungsfrist"), and it has a "reasonable delay" ("Rügefrist") to give notice to the [Seller] about the non-conformity of the goods (défauts, aliud), otherwise it loses the right to rely on a lack of conformity of the goods" (art. 39(1) CISG; Neumayer/Ming, op. cit. n. 2 ad art. 39 CISG).
9. The "reasonable delay" to give notice about the lack of conformity, stated in art. 39(1) CISG, should not exceed, on average, a month, starting from the date of the delivery of the goods (BGH 8 March 1995 in: BGHZ vol. 129, pp. 75, 85; OGH Wien 15 October 1988 in: ZfRV 1999, p. 63; OLG München, 11 March 1998 in: SZIER/RSDIE 1999 p. 199; CA Grenoble 13.9.1995 in: Dalloz, 1996, p. 947; OG LU 8 January 1997 in: SZIER/RSDIE 1997 p.132; v. Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrechtsübereinkommen, Neuwied, 1999, n.11 ad art. 39 CVIM; Heuzé, La vente internationale de merchandises, Paris, LGDJ, 2000, p.271; Magnus in: Honsell, éd., Kommentar zum UN-Kaufrecht, Berlin-Zurich, 1996, n. 22 ad art. 39 CVIM).
10. In this case, the [Buyer] did not prove that it gave notice of lack of conformity of the goods to the [Seller] within a one month reasonable delay starting from the last delivery of the goods. [Buyer] neither pleads nor do the files demonstrate the existence of a "reasonable excuse" in the meaning of Art. 44 CISG which could justify its failure.
ON THIS GROUND
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee of Switzerland is referred to as [Seller]; Defendant-Appellant of France is referred to as [Buyer]. Amounts in the currency of Switzerland [Swiss francs] are indicated as [Sf].
Translator's note on other abbreviations: CO = Swiss Code of Obligations.
** Luiz Gustavo Meira Moser is a member of the Brazilian Arbitration Committee, Young International Arbitration Group (YIAG), Association Suisse d'Arbitrage (ASA), ICDR, Young & International and International Law Association (ILA) - Brazilian Committee. Moser was a member of the team of Federal University of Rio Grande do Sul at the 12th and 13th Willem C. Vis International Commercial Arbitration Moot in 2005 and 2006. He is the Brazilian correspondent in the Global Sales Law Project.Go to Case Table of Contents