Egypt 11 April 2006 Court of Cassation [Supreme Court] (Marble case)
[Cite as: http://cisgw3.law.pace.edu/cases/060411e1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Decision number 979 for judicial year 73
CASE HISTORY: 1st instance South Cairo First Instance Court (Commercial Circuit 14) 24 December 2002; 2d instance Cairo Court of Appeals (Commercial Court 50) 24 August 2003 [reversed and remanded by Court of Cassation]
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Egypt (defendant)
GOODS INVOLVED: Marble
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
7A3 [Interpretation of Convention (principles of interpretation): international character; good faith]; 11A [Formal requirements: writing or other formality not required]; 13B [Telegram and telex as "writing": electronic communications similar to telegram or telex]
7A3 [Interpretation of Convention (principles of interpretation): international character; good faith];
11A [Formal requirements: writing or other formality not required];
13B [Telegram and telex as "writing": electronic communications similar to telegram or telex]
Excerpt from Hossam A. El-Saghir, "The Interpretation of the CISG in the Arab World" (2008)
"The Egyptian Court of Cassation's Lonely Decision
"In 1991, an Italian seller and Egyptian buyer entered into a contract for the sale of marble. The buyer paid part of the price and refused to pay the rest of it. The seller brought a case before the first instance court seeking the payment of the amounts due. The seller presented two invoices containing the quantity of goods and the price. He also presented the faxes in which he requested the buyer to pay the unpaid portion of the price plus interests. The First Instance Court applied the Egyptian law to the dispute without paying any attention to the CISG. It ruled in favor of the seller and ordered the buyer to pay the price due. The buyer appealed to the Court of Appeals arguing that the seller failed to meet the burden of proving that he took delivery of the goods. The Appellate Court affirmed the decision. Again, the buyer challenged the decision before the Court of Cassation. It found that the Court of Appeals erred in applying the domestic law to the dispute. Therefore, it ruled that the CISG should govern the dispute and remanded the case so that the Appellate court issues another decision to that effect. The Court reasoned that the CISG is applicable to the dispute by virtue of Article 1(1)(a). It emphasized the international nature of the Convention and the role that good faith plays in its application. It also emphasized that regard should be paid to the evidentiary rules of the CISG before resorting to the national law. For example, parties are liable for terms incorporated in their written communications even if such communications are not signed by the parties. Moreover, the definition of writing under the Convention is flexible enough to include telex, fax, e-mail and other electronic means of communication.
"Surprisingly, none of the disputing parties requested the application of the CISG to the dispute. The Court of Cassation took the initiative to apply the Convention. This illustrates that neither the parties nor lower courts have adequate knowledge of the Convention. To a great extent, this decision rang a bell that alerts lower courts that they should apply the CISG whenever applicable."
1. South Cairo First Instance Court, Commercial Circuit 14, December 24, 2002 (unpublished decision, on file with author).
2. Cairo Court of Appeals, Commercial Circuit 50, August 24, 2003.
3. The Case is still re-reviewed before the Court of Appeals
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Arabic): Click here for Arabic text of case
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents