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CISG CASE PRESENTATION

Spain 24 February 2006 Supreme Court (Auto accessories case)
[Cite as: http://cisgw3.law.pace.edu/cases/060224s4.html]

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

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Case identification

DATE OF DECISION: 20060224 (24 February 2006)

JURISDICTION: Spain

TRIBUNAL: Tribunal Supremo, Sala de lo Civil (sección 1ª)

JUDGE(S): Rafael Ruiz de la Cuesta Cascajares

CASE NUMBER/DOCKET NUMBER: 165/2006

CASE NAME: Compañía Mercantil NER-TOR v. Autolux F. Strub

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 3 de Llobregat 17 July 1997; 2d instance Audiencia Provincial Barcelona 20 April 1999

SELLER'S COUNTRY: Switzerland (defendant)

BUYER'S COUNTRY: Spain (plaintiff)

GOODS INVOLVED: Automobile accessories


Case abstract

SPAIN: Tribunal Supremo, 24 February 2006

Case law on UNCITRAL texts (CLOUT) abstract no. 733

Reproduced with permission of UNCITRAL

Abstract prepared by Pilar Perales Viscasillas, National Correspondent

A Swiss seller and a Spanish buyer entered into a contract for the purchase of car accessories. The seller was repeatedly late in the delivery, sent products that did not conform in quantity or size to those agreed in the contract or the products did not function properly. Thus, the buyer took legal action, seeking avoidance of the contract and damages.

The case went through three levels of jurisdiction and only in the last level the seller claimed that the contract should be governed by the CISG. The court noted that this was a new legal argument, which the seller had not stated before. The court further observed that, in previous instances, the seller had presented arguments only based on Spanish law. Consequently, the court held that the seller had tacitly consented to Spanish law as the applicable law and deemed the CISG not applicable [article 1 CISG].

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Classification of issues present

APPLICATION OF CISG: No

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 6

Classification of issues using UNCITRAL classification code numbers:

6A1 [Choice of law: implied exclusion of Convention]

Descriptors: Choice of law

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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/respan49.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): Fuente: Aranzadi Westlaw

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated November 8, 2007
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