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CISG CASE PRESENTATION

Spain 21 March 2006 Appellate Court Castellón (case on apparatus for the reduction of consumption of gasoline)
[Cite as: http://cisgw3.law.pace.edu/cases/060321s4.html]

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

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Case identification

DATE OF DECISION: 20060321 (21 March 2006)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial Castellon, sección 3ª

JUDGE(S): Don. José Manuel Marco Cos (Presidente), Doña Adela Bardón Martínez, Doña Mª Angeles Gil Marqués

CASE NUMBER/DOCKET NUMBER: 138/2006

CASE NAME: Motortraccion Castellon, S.L. v. D. Evaristo

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 6 de Castellón 18 April 2005

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Spain (defendant)

GOODS INVOLVED: Apparatus for the reduction of consumption of gasoline


Case abstract

SPAIN: Audiencia Provincial de Castellón, 21 March 2006

Case law on UNCITRAL texts (CLOUT) abstract no. 734

Reproduced with permission of UNCITRAL

Abstract prepared by Pilar Perales Viscasillas, National Correspondent

The seller, a German company, sold devices to a Spanish company to reduce the consumption of gasoline in cars. The purchase price was due in January 2001. The gadgets did not reduce the gasoline consumption and the buyer orally informed the seller of this problem. The seller visited the buyer's premises in June 2001 to verify the lack of conformity. In March of the following year the buyer formally notified the seller the nonconformity, and avoided the contract.

The seller sued the buyer claiming the outstanding contract price, which the buyer denied paying due to the goods' lack of conformity. The court noted that the lack of conformity of the goods was due to a hidden default, according to article 39 (1) CISG. However, the court held that the time of the written notification by the buyer to the seller was not within a reasonable time according to article 39 (1) CISG and thus upheld the seller's claim. The buyer appealed the decision.

The appellate court noted that the lack of conformity of the goods constituted a fundamental breach according to article 25 CISG. The court observed that the buyer had orally informed the seller about the goods' non-conformity and its intention of returning them before the written notification took place, which even resulted in the seller's visit to the buyer. Thus, the court held that the buyer had notified the seller of its intention to avoid the contract according to article 26 CISG and article 49(1)(a) CISG. In addition, the court decided that these communications took place within a reasonable time according to article 49(2)(b)(i) CISG. The buyer's appeal was, thus, upheld.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 25 ; 26 ; 39 ; 49

Classification of issues using UNCITRAL classification code numbers:

25B [Definition of fundamental breach: substantial deprivation of expectation, etc.];

26A1 [Effective definition of avoidance: notice to other party required];

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];

49B1 [Buyer’s loss of right to declare avoidance after delivery: failure to avoid within periods specified in art. 49(2)(a) and (b)]

Descriptors: Avoidance ; Fundamental breach ; Lack of conformity notice, timeliness

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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/respan53.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan53.htm>

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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