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CISG CASE PRESENTATION

Slovak Republic 27 February 2006 District Court in Nitra (L.-K S.r.l. v. N., S.r.o.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060227k1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20060227 (27 February 2006)

JURISDICTION: Slovak Republic

TRIBUNAL: District Court in Nitra

JUDGE(S): JU Dr. Jana Coboriova

CASE NUMBER/DOCKET NUMBER: 23 Cb/211/2005

CASE NAME: L.-K. S.r.l v. N., S.r.o.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: [-]


Classification of issues present

APPLICATION OF CISG: Yes.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 11 ; 14 ; 18 ; 23 ; 30 ; 31(1)(a) ; 53 ; 78

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

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

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

District Court in Nitra

27 February 2006 [23 Cb/211/2005]

Translation [*] by Juraj Kotrusz [**]

JUDGMENT
IN THE NAME OF THE SLOVAK REPUBLIC

The District Court in Nitra, deciding by a single judge, JUDr. Jana Coboriova, in the case of Plaintiff L.-K.-S.r.l. [Seller], with its registered office in F.L., Italy, represented by attorney JUDr. Mag. J.C., versus Defendant N., S.r.o. [Buyer], with its registered office in B. ___, N. [Slovak Republic], regarding payment of 2,805.- Euro [EUR] and appurtenances

h a s   d e c i d e d   a s   f o l l o w s:

The [Buyer] is obliged to pay to the [Seller] the sum of 2,805.- EUR and interest of

- 9.1 % annually on this sum for the period from 10 July 2003 until 31 December 2003;
- 9.02 % annually on this sum for the period from 1 January 2004 until 30 June 2004;
- 9.01 % annually on this sum for the period from 1 July 2004 until 31 December 2004;
- 9.09 % annually on this sum for the period from 1 January 2005 until 30 June 2005;
- 9.05 % annually on this sum for the period from 1 July 2005 until 31 December 2005;
- 9.25 % annually on this sum for the period from 1 January 2006 until payment.

Everything within three days after the judgment comes into force.

The Court stays the case in the remaining part.

The [Buyer] is obliged to pay to the [Seller] a sum of 105,914.- Slovak koruna [Sk] as a reimbursement of costs of the proceedings within three days after the judgment comes into force on the account of legal counsel of the [Buyer].

REASONING

The [Seller] claimed in the proceedings by its action filed with the court on 24 January 2005 its right to payment of 2,805.- EUR with appurtenance as a purchase price for goods delivered to the [Buyer].

Legal counsel of the [Seller] stated in the action that following [Buyer]'s purchase order of 24 April 2003 that:

   -    The [Seller] delivered goods to the [Buyer]. The [Seller] drew a pro forma invoice on 24 April 2003 which specified the delivered goods and the purchase price in sum of 2,805.- EUR and the [Buyer] accepted this invoice. The [Seller] delivered the goods on time and the [Buyer] did not notify of any lack of conformity.
 
   -    The [Seller] drew invoice no. 20792 on 8 May 2003 for 2,805.- EUR due on 8 July 2003. The [Buyer] did not pay the purchase price, despite the fact that the [Seller] urged [Buyer] to do so by letters of 25 August 2003, 5 December 2003, 29 January 2004 and in another letter from the [Seller]'s legal counsel.

On 2 April 2005, the District Court in Nitra issued Order to Pay, rec. no. 27Rob 45/2005-21. The court was not able to deliver the order to the [Buyer] at the address of registered office, as it is recorded in the Companies Register and at the address of its executive.

The order to pay was therefore, with reference to sec. 173 part 2 of the Slovak Civil Procedure Code (hereinafter referred to as "CPC"), cancelled by a resolution of 6 October 2005, rec. no. 27Rob 45/2005-26.

The court detected the address of [Buyer]'s registered office and address of residence of the [Buyer]'s executive from the record of the [Buyer] in Companies Register.

The court set the date of the court proceedings on 9 January 2006 and duly summoned the [Seller] via its legal counsel and the [Buyer], also delivering [Seller]'s action and other documents in accordance with sec. 48 part 2 CPC.

The parties to the dispute did not appear before the court. The court with reference to sec. 101 part 2 CPC therefore tried and decided the case in their absence.

The [Seller]'s attorney stated in the proceedings that the [Buyer] drew a purchase order and delivered it to the [Seller]. On the same day, the [Buyer] received a pro forma invoice from the [Seller] which specified the goods to be delivered and the purchase price. The [Buyer] approved this invoice by its signature and the parties thereby concluded a contract of sale. The [Seller] duly delivered the goods to the [Buyer] on time by handing the goods over to the carrier but the [Buyer] failed to pay the purchase price for the goods. The [Seller] claimed its right to payment of interest based on Italian statutory decree no. 231/2002, which implemented the Directive of the European Parliament and the Council no. 2000/35/CE. The [Seller] withdrew partially its claim for interest.

The court gathered evidence by inspecting the submitted documents: attempt for out-of-court settlement from 10 January 2005, notice on interest rates in the Italian Republic from 13 January 2005, records from companies registers of both parties, purchase order no. 240403 of 24 April 2003, invoice no. 20792 of 8 May 2003, international bill of lading no. 00135210359 of 9 May 2003, bill of lading of 8 May 2003, and letters from the [Seller] of 25 August 2003, 5 December 2003 and 29 January 2004.

The court thereby investigated this factual situation: Following the [Buyer]'s purchase order of 24 April 2003, the [Seller] delivered the goods to the [Buyer] and drew a pro forma invoice for these goods which prescribed the purchase price in sum of 2,805.- EUR, which invoice was accepted by the [Buyer]. The goods were delivered to the [Buyer] and the [Buyer] did not claim lack of conformity of these goods or delay of delivery of the goods. The [Seller] drew invoice no. 20792 on 8 May 2003 due on 8 July 2003 whereby it claimed its right to payment of the purchase price in sum of 2,805.- EUR. The [Buyer] did not pay the purchase price, despite [Seller]'s calls for payment and is still in default with payment of this sum.

Under sec. 9 part 1 of act no. 97/1963 Coll. on international private and procedural law as amended, parties to a contract may choose the law which will govern their mutual proprietary matters; even without express declaration, if there is no doubt about this will of the parties.

Under sec. 10 part 1 of this act, if the parties have not made such choice of law, their contractual relationships will be governed by the law which assures their reasonable solution.

Under sec. 10 part 2 a) of this act, with reference to the abovementioned, contracts of sale and work contracts will be usually governed by the law of the country of seller's or constructor's registered office (domicile) at the time of concluding of a contract.

   -    Under article 1(1) of the UN Convention on Contracts for the International Sale of Goods (hereinafter referred to as "Convention"), published in Collection of Acts as number 160/1991 Coll., this Convention applies to contracts of sale of goods between parties whose places of business are in different States: a) when the States are Contracting States; or b) when the rules of private international law lead to the application of the law of a Contracting State.
 
   -    Under article 11 of the Convention, a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.
 
   -    Under article 14 of the Convention, a proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.
 
   -    Under article 18(1) of the Convention, a statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.
 
   -    Under article 18(2) first sentence of the Convention, an acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror.
 
   -    Under article 23 of the Convention, a contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.
 
   -    Under article 30 of the Convention, the seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.
 
   -    Under article 31(1)(a) of the Convention, if the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: if the contract of sale involves carriage of the goods -- in handing the goods over to the first carrier for transmission to the buyer.
 
   -    Under article 53 of the Convention, the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.
 

With reference to the evidence gathered, taking into consideration the abovementioned provisions of the Convention, the court found that the contractual relationship existing between the parties to the dispute shall be governed by the Convention. The [Seller] has its place of business in Italy and the [Buyer] has its place of business in Slovakia, where both States are parties to the Convention. There was no evidence that parties made a choice of law and the provisions of the Conventions should therefore be used to govern their relationship (art. 1(1). The [Seller] proved in the proceedings that their contract was concluding by [Seller]'s acceptance of [Buyer]'s offer. The acceptance was made on 24 April 2003 by drawing a pro forma invoice in accordance with article 18 of the Convention. The contract was concluded at the time of accepting the [Buyer]'s offer and the [Seller] fulfilled its obligation to deliver the goods to the [Seller]. The [Buyer] received the goods, did not claim lack of conformity of the goods or delay in delivery of the goods and did not pay the purchase price, whereby it violated its contractual and statutory duty.

With reference to the abovementioned, the court concluded that the claim asserted by the [Seller] in the action is justified in its entirety. The court therefore upheld it.

Under article 78 of the Convention, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.

Since the [Buyer] is in default with payment of the purchase price, the [Seller] is entitled to interest on this sum, as it asserted this right with reference to the Italian statutory decree no. 231/2002. The court upheld the [Seller]'s right to interest, since it was asserted with reference to the law of the country in which the [Seller] has its place of business.

As the [Seller] initially claimed its right to interest in the amount of 10.5 % annually and subsequently withdrew this claim partially, the court stayed the proceedings in this part with reference to sec. 96 part 1,3 CPC.

The court decided about the reimbursement of the costs of judicial proceedings under sec. 142 part 1 CPC and granted a full reimbursement of the costs to the [Seller], since the [Seller] was successful in its claim in its entirety. The [Seller] was granted right for reimbursement of court fee for the action in amount of 5,420.- Sk, reimbursement of actual costs in amount of 10,063.- Sk, costs of legal aid in amount of 90,431.- Sk.

Instruction: An appeal against this judgment must be filed via this court within fifteen days of its receipt.

District Court in Nitra, 27 February 2006

JUDr. Jana Coboriova, Judge


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of the Slovak Republic is referred to as [Buyer]. Amounts in the currency of the European Union (Euro) are indicated as [EUR]; amounts in the currency of the Slovak Republic (Slovak koruna) are indicated as [Sk].

** Juraj Kotrusz is a Slovak lawyer who studied law at the University of Trnava, Slovakia, and at the Hague Academy of International Law.

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Pace Law School Institute of International Commercial Law - Last updated December 3, 2008
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