Serbia 7 February 2006 High Commercial Court (Cold rolled coils) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060207sb.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: XVIII Pě. 9326/2005
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Contracting State other than Serbia
BUYER'S COUNTRY: Serbia
GOODS INVOLVED: Cold rolled coils
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
53A [Buyer's obligation to pay price of goods]
53A [Buyer's obligation to pay price of goods]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Serbian): Click here from excerpt from Serbian text [published as Paragraf Lex Database of Serbian court decisions]
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
Judgment of 7 February 2006 [XVIII PZ 9326/2005]
Translation [*] by Marko Jovanovic, LL.M.
Edited by Dr. Vladimir Pavic, Milena Djordjevic, LL.M. [**]
In a case in which the seller is a foreign company, the buyer is a domestic legal person and both of the States of the contracting parties are Contracting States of the United Nations Convention on Contracts for the International Sale of Goods, the contract of sale shall be governed by the CISG. If the domestic court failed to apply the CISG and applied the Serbian Law on Contracts and Torts instead, such a decision does not [in this case] prejudice the substantive rights of the parties, because both legal instruments regulate the contractual obligations in the same way, i.e., the main obligation of [Buyer] is to pay the price for the goods and take delivery of them.
REASONS FOR THE DECISION (EXCERPT)
The judgment cited in the ruling upheld the decision on enforcement made by the Commercial Court in K. (Case number Iv. 1401/04 of 10 June 2004). Pursuant to this decision on enforcement, [Buyer] was obliged to pay [Seller] the sum of EUR 38,628.02 with interest and 67,041.60 Serbian dinars for the expenses related to the enforcement procedure. [Buyer] was also obliged to pay [Seller] the sum of 132,041.00 Serbian dinars for the costs of further court proceedings.
In the reasons for the decision of the abovementioned judgment it was stated that the [Seller] successfully proved that his claim towards [Buyer] to whom he delivered a part of the contracted goods (cold rolled coils) for the purposes of [Buyer's] production business, while the rest was prepared for delivery, is well-grounded since the [Buyer] who promised to pay the price on several occasions failed to do so. [Buyer] did not produce evidence to the opposite. Therefore, [Buyer] failed to perform his obligation under the contract and is obliged to do so.
In the light of the abovementioned facts, the Court of First Instance has properly established the existence, the basis and the pecuniary value of rights and obligations arising out of the contract, as well as the fact that [Buyer] failed to perform his obligations.
For these reasons, the request for appeal on the basis of partially and improperly established facts of the case is not grounded.
The request for appeal on the basis of improper application of substantive law is grounded, although not in the sense that [Buyer] has submitted, but because the Court of First Instance applied the provisions of the Serbian Law on Contracts and Torts instead of the United Nations Convention on Contracts for the International Sale of Goods. The CISG had to be applied in the case at hand since both [Seller] and [Buyer] are domiciled in Contracting States and the CISG takes precedence over the domestic legislation, pursuant to the pertinent provisions of the Constitutional Charter.
However, the fact that the Court of First Instance applied the improper substantive law does not prejudice the validity of the decision it has rendered and does not constitute sufficient grounds for its annulment.
Pursuant to Article 53 of the CISG, the main obligation of the buyer is to pay the price for the goods and take delivery of them as required by the contract and the Convention.
Therefore, in that respect the provisions of the CISG do not differ from the provisions of domestic law, so the application of the CISG would not have materially altered the decision rendered by the court of first instance.
Other arguments submitted by [Buyer] in his request are not relevant for the decision on appeal.
* All translations should be verified by cross-checking against the original text. For the purposes of this translation, the Claimant is referred to as [Seller] and the Respondent is referred to as [Buyer].
** Marko Jovanovic, LL.M. (U. of Belgrade) is a Doctorate student at the University of Paris 1 - Panthéon Sorbonne and at the University of Belgrade. 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.Go to Case Table of Contents