Slovak Republic 25 April 2006 District Court in Nitra [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060425k1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 27Cb/256/2005
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (plaintiff)
BUYER'S COUNTRY: Slovak Republic (defendant)
GOODS INVOLVED: [-]
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
4A [Issues covered]; 78A [Interest on delay in receiving price or any other sum in arrears]
4A [Issues covered];
78A [Interest on delay in receiving price or any other sum in arrears]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Slovak): Unavailable
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
25 April 2006 [27Cb/256/2005]
Translation [*] by Juraj Kotrusz [**]
IN THE NAME OF THE SLOVAK REPUBLIC
The District Court in Nitra, deciding by a single judge, Mgr. Bozena Csibranyiova, in the case of Plaintiff B.G. & C.K. [Seller], with its registered office in W.S.X., Federal Republic of Germany, represented by attorney JUDr. J.B., versus Defendant Y., s.r.o. [Buyer], with its registered office in Z.M. [Slovak Republic], regarding payment of 3,265.83 Euro [EUR] and appurtenances
h a s d e c i d e d a s f o l l o w s:
[Buyer] is obliged to pay [Plaintiff] the sum of 3,265.83 EUR with interest of 9.13% annually on this sum for the period from 27 August 2004 until payment, all within three days after the judgment comes into force.
[Buyer] is obliged to pay [Plaintiff] a sum of 58.076,50 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 [Seller].
[Seller], German legal person, with its registered office in Federal Republic of Germany, claimed by its action filed with the court on 30 June 2005 its right to payment of 3,265.83 EUR with appurtenances and the right to reimbursement of costs of the proceedings.
Upon the documents submitted by [Seller], the court issued an order to pay on 2 August 2005, rec. no.: 27Rob/406/2005-26 but the court was unable to serve [Buyer] with the decision and therefore cancelled the order to pay by its resolution of 4 November 2005, rec. no.: 27Rob/406/2005-31.
The court duly summoned the parties to the hearing, ordered on 25 April 2006, but neither [Seller] nor [Buyer] appeared before the court. The [Seller]'s legal counsel excused the absence of his client. The court with reference to sec. 101 part 2 of the CPC therefore tried and decided the case in the absence of the parties.
[Seller]'s legal counsel stated at the hearing that [Seller] insists on his action. Upon the purchase order made by [Buyer], [Seller] delivered the goods to it. The purchase order was made by phone and [Buyer] later confirmed it in writing by his notice from 13 July 2004. The object of the contract was the delivery of the goods specified in the purchase order. [Seller] fulfilled its obligation to deliver the ordered goods but [Buyer] failed to pay the purchase price in its entirety. [Buyer]'s outstanding debt amounts to 3,265.83 EUR, as claimed in the action.
The court gathered evidence by reading the action, confirmation of the purchase order, invoice no. 256465, invoice no. 256673, general contract terms, copy of sec. 288 of the German Civil Code, the current interest rate applied by the Federal Bank of Germany, order to pay, resolution on cancelling the order to pay, records of the parties to the proceedings from companies registers, record from the [Seller]'s bank account, CMR no. 1112637 and other documents and thereby determined the following factual circumstances and qualified them under relevant legal provisions.
The court determined from [Seller]'s argument, which [Buyer] did not oppose, and from the documents submitted to the court that [Buyer] ordered goods from [Seller] which were subsequently delivered to [Buyer] in two stages. In the first stage, [Seller] delivered 7,500 units of each type of the ordered goods. The purchase price for these goods was asserted by invoice no. 256465 from 23 July 2004 amounting to 1,987.50 EUR. [Seller] subsequently delivered to [Buyer] the residual part of the shipment, consisting of 12,500 units of each type. The purchase price for these goods was asserted by invoice no. 256673 from 27 July 2004 amounting to 3,312.50 EUR. [Buyer] partially paid the price on 22 July 2004 in the sum of 2,034.17 EUR. The [Buyer]'s outstanding debt amounts to 3,265.83 EUR which corresponds to the sum claimed by the action.
[Seller] is a German legal entity and has its registered office in the Federal Republic of Germany and [Buyer] has its registered office in Slovakia. Upon [Buyer]'s purchase order, the parties concluded a contract of sale, under which [Seller] delivered the ordered goods to [Buyer] and requested the purchase price. [Buyer] failed to pay the entire price.
Sec. 1 of act no. 97/1963 Coll. on international private and procedural law as amended prescribes which law is applicable to civil, commercial, labor and other relationships with international aspect, prescribes legal status of foreigners and prescribes the procedure for Slovak judicial authorities when regulating these relationships, making decisions, and thereby promoting international cooperation.
Under sec. 2 of act no. 97/1963 Coll. on international private and procedural law as amended, the provisions of this act shall apply, unless otherwise provided by an international treaty ratified by the Slovak Republic or by a statute enacted in connection with such treaty.
Under sec. 10 part 2 a) of this act, if not otherwise prescribed in another legal instrument, the sales contract and work contract will be usually governed by the law of the state where the seller or the worker has his place at the time of contract formation.
Under sec. 37 of this act, if not otherwise stipulated in subsequent provisions, Slovak courts have jurisdiction to try and decide the case, if the action is filed against a person who is domiciled or has a place of business in Slovakia, or property in Slovakia if the action is concerning proprietary matters.
A contract of sale both in domestic and international trade presents the most important and most frequently used type of contract by merchants. Under this contract, the goods are transferred for money.
Legal regulation of sales contracts prescribed in the Slovak Commercial Code is analogous to provisions of the UN Convention on Contracts for the International Sale of Goods, created at the diplomatic conference in Vienna in 1980 (hereinafter referred to as "Vienna Convention" published as Notice of Ministry of Foreign Affairs no. 160/1991 Coll.) Both Slovakia and the Federal Republic of Germany are parties to this Convention.
According to article 1(1) of the Vienna Convention, 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.
The parties to the contract may exclude the application of the Vienna Convention to their mutual relationship. If they intend to perform such exclusion, it is recommended to expressly prescribe that they exclude application of the Vienna Convention or its particular provisions.
With reference to the evidence gathered, the court found no sign of the parties' intent to exclude the provisions of the Vienna Convention. The court therefore qualified this contract under the Vienna Convention.
Under article 4 of the Vienna Convention, this Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract.
[Seller] delivered to [Buyer] the goods ordered and [Buyer] was obliged under article 55 of the Vienna Convention to pay the purchase price in accordance with the contract, but it failed to do so. [Buyer] did not paid the sum of 3,265.83 EUR which was, with reference to the agreement of the parties, due on 26 August 2004. On the following day, [Buyer] defaulted on the payment of this sum and [Seller] therefore also has a right to default interest.
Under article 78 of the Vienna 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.
The abovementioned Vienna Convention regulates the right to interest only with respect to its existence and does not specify its amount. The court therefore qualified this legal issue under act no. 97/1963 Coll. on international private and procedural law, as amended.
Under sec. 10 part 1 of this act, if 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, unless a special legal instrument stipulates otherwise, contracts of sale will be usually governed by the law of the country of seller's registered office (domicile) at the time of concluding of a contract.
Under sec. 288 part 2 of the German Civil Code unless a consumer is involved in the legal relationship, the interest rate for claims is shall be the general interest rate of 8 percent.
As prescribed by the current schedule of the general interest rate of the Federal Bank of Germany, the general interest rate applicable on 1 July 2004 is 1.13% annually and the one applicable on 21 January 2005 is 1.20% annually.
The court therefore decided that the asserted claim was justified in its entirety and therefore bound [Buyer] to pay the principal and interest of 9.13% annually on the sum in arrears for the period from 27 August 2004, i.e. from the date [Buyer] defaulted with payment of the price.
The court analyzed the request for reimbursement of the costs of the judicial proceedings under sec. 142 part 1 CPC and granted a full reimbursement of the costs to [Seller], since [Seller] was successful in its entire claim. [Seller] was granted the right for reimbursement of the court fee for the action in the amount of 6,370.- Sk and reimbursement of legal aid in amount of 51,706.50 Sk
Instruction: An appeal against this judgment must be filed with the Regional Court in Nitra via this court within fifteen days of its receipt.
District Court in Nitra, 25 April 2006
Mgr. Bozena Csibranyiova, Judge
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the initial Plaintiff of the Federal Republic of Germany 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. He is also the founder of the CISG Slovakia database.Go to Case Table of Contents