Slovak Republic 10 May 2006 Regional Court in Banska Bystrica (Floor tiles case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060510k1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 49 Cbm/14/2004
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Slovak Republic (defendant)
GOODS INVOLVED: Non-skid floor tiles
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
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
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
10 May 2006 [49 Cbm/14/2004]
Translation [*] by Juraj Kotrusz [**]
IN THE NAME OF THE SLOVAK REPUBLIC
The Regional Court in Banska Bystrica, deciding by a single judge, JUDr. Eva Kmetova, in the case of Plaintiff M.G.C.S., [Seller], with its registered office in B. ___, Italy, represented by attorney JUDr. J. M. versus 1st Defendant D. S.r.o., with its registered office in P., ___, B.B. [Slovak Republic] and 2d Defendant Ing. D.K. - D. [Buyer], with its place of business in P., BB [Slovak Republic], regarding payment of 5,632.- 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] a sum in amount of 5,632.- EUR and interest of 14 % annually:
|-||on the sum of 2,188.62 EUR for the period from 17 November 2002 until payment;|
|-||on the sum of 3,443.74 EUR for the period from 18 November 2002 until payment;|
and to pay the sum in amount of 1,373.63 EUR with interest of 14 % annually for the period from 7 May 2005 until payment within three days after the judgment comes into force.
The [Buyer] is obliged to pay to the [Seller] the reimbursement of costs of the proceedings in amount of 55,803.- Slovak koruna [Sk] on account of attorneys' fees of the [Seller] within three days after the judgment comes into force.
The court dismisses the action against the 1st defendant in its entirety.
The [Seller] is obliged to pay to the 1st defendant the reimbursement of costs of the proceedings in amount of 11,130.- Sk within three days after the judgment comes into force.
The [Seller] initially claimed in the proceedings by its action filed with the court on 23 August 2004 against the 1st defendant its right to payment of principal amounting to 222,647.- Sk with interest of 18.25 % annually:
|-||from the sum of 86,516.- Sk for the period from 17 November 2002 until payment;|
|-||from the sum of 136,131.- Sk for the period from 18 November 2002 until payment.|
The [Seller] claimed in its action that pursuant to a purchase order sent by the [Buyer], the [Seller] delivered goods to the [Buyer] and drew three invoices:
|-||Invoice no. E 031812 for 5,616.00 EUR (due on 26 October 2002);|
|-||Invoice no. E 034594 for 2,533.68 EUR (due on 17 November 2002); and|
|-||Invoice no. E 034815 for 3,382.48 EUR (due on 18 November 2002).|
The [Buyer] paid for the goods delivered a total sum of 6,000.- EUR but did not pay the residual part of the purchase price amounting to 5,632.16 EUR, despite being urged to do so several times by the [Buyer].
The [Buyer] filed a protest against the Order to pay issued by the court in a prescribed period of time and argued that the [Seller] was in a contractual relationship with an entrepreneur using a part of its name D., but that this entrepreneur is not a limited liability company (S.r.o.) and has a different identification number, as it was prescribed in the action and subsequently in the Order to pay.
The [Seller] asked the court by its motion of 28 December 2004 to approve an intervention of a new defendant, the [Buyer], and to impose the obligation to pay the claimed sum on both defendants jointly. The [Seller] argued that since 2002 it has been in a business relationship with an entrepreneur to whom it repeatedly delivered goods: in September 2002 (amounting to 5,616.- EUR) and in October 2002 (5,916.16 EUR). The identification of the entrepreneur stated on the [Seller]'s invoices lists its business name D. and registered office P., XX, B. B., was provided by the entrepreneur (the [Buyer]). The [Buyer] has never disagreed with this identification when receiving the goods. Moreover, the [Buyer] took delivery of the goods and partially paid the purchase price set forth in the invoices drawn in 2003 in the amount of 6,000.- EUR. The [Seller] had no reason to doubt the verity of the business name of the [Buyer] stated in all of its business documents. However, after checking the Companies Register and the Trade Register, the [Seller] found that two business entities have their places of business at address P. XX. B.B.:
|(1)||Corporation D., S.r.o., Identification no. XX, registered in the Companies Registered
maintained by the District Court Banska Bystrica;
|(2)||Ing. D.K. - D., Identification no. XX, natural person - entrepreneur registered in the Trade Register maintained by the Circuit Bureau in Banska Bystrica.|
Both entities have "D." in their business name, Ing. D.K. is a shareholder in the corporation D., S.r.o. and its executive and at the same time, he conducts business as a natural person - entrepreneur under a business name Ing. D.K. - D. The [Buyer] never raised the incorrectness of its identification stated in the documents concerning the delivery of the goods (invoices, CMR, documents, notices) and the [Seller] is therefore worried about the [Buyer]'s efforts not to pay the purchase price for the goods delivered.
By its resolution of 22 February 2005, rec. no.: 49Cbm/14/2004-69, the Regional Court in Banska Bystrica approved the intervention of the [Buyer] as a new defendant besides the initial defendant. The resolution came into force on 11 March 2005.
The Regional Court in Banska Bystrica as the Court of the First Instance, being competent to try the case under sec. 11 and 9 part 2 i) of the Slovak Civil Procedure Code (hereinafter referred to as "CPC"), gathered the evidence by reading:
|-||Invoices no. E 031812 of 26 September 2002, no. E 034594 of 17 October 2002, no. E 034815 of 18 October 2002;|
|-||CMR of 27 September 2002 and 18 October 2002;|
|-||Records from the Companies Register of the [Seller] and the 1st defendant and record from the Trade Register of the [Buyer];|
|-||Calls for payment of 4 January 2003 and 7 April 2003 and other documents submitted by the [Seller].|
The [Seller] insisted on its action and its reasons stated therein.
The 1st defendant, represented at the court proceedings held on 23 February 2005 by its executive Ing. D.K., stated that the [Seller] had business relationships with Ing. D.K. as a natural person - entrepreneur and not with the 1st defendant, which is a limited liability company. It alleged that the business relationships with the [Seller] were initiated at the time when the corporation was not even established. The business was running without any problems, it was initially conducted by corporation A. S.r.o. with its registered office in B.B. and subsequently by the [Buyer] himself. The [Buyer] did not personally meet with the [Seller] as the [Seller] was represented by its regional business agent for the Czech and Slovak Republic, Mr. B., living in P. Subsequently, the problems started with the quality of the deliveries of the goods, consisting of non-skid floor tiles that were used by the [Buyer] in construction of a building for T., a.s. in K. The [Buyer] argued that it notified Mr. B. of the lack of conformity and did not act in these matters further. Finally, T., a.s. stopped paying for the construction and the [Buyer] subsequently stopped paying to the [Seller] the purchase price for the deliveries. The [Buyer] affirmed the three deliveries claimed by the [Seller]. The [Buyer] argued that it did not pay the invoices since the [Seller] sent them to the 1st defendant as a limited liability company, while the [Seller] had business relationships with the [Buyer] as a natural person and the 1st defendant had problems to put these invoices on its account.
The [Seller] informed the court by its motion from 26 April 2005 that there are intensive negotiations proceeding between the parties to the dispute.
At the court proceedings held on 26 October 2005, the [Seller] submitted an Out-of-court-settlement concluded by the parties to the dispute. In this settlement, the [Buyer] promised to pay the sum of 5,632.16 EUR and the costs of attorneys' fees in amount of 1,373.62 EUR and to pay the costs of the judicial proceedings amounting to 55,803.- Sk to the legal counsel of the [Seller], everything within ten days after its signing. The [Seller] therefore asked the court to approve the change of its action and to bind both defendants to pay the sum of 5,532.16 EUR with interest of 18.26 % annually on the sum of 2,149.68 EUR for the period from 17 November 2002 until payment and on the sum of 3,382.48 EUR for the period from 18 November 2002 until payment and to pay the sum of 1,373.62 EUR with interest of 16 % annually on this sum for the period from 7 May 2005 until payment.
The court informed the parties to the dispute about the change of the action by sending them copy of the minutes from the court proceedings of 26 October 2005.
The court tried the case in the absence of both defendants at the proceedings held on 15 February 2006, since they did not appear before the court without any excuse, though being duly summoned.
The [Seller] referred to the Out-of-court settlement concluded on 26 April 2005 in Bratislava and stated that the defendants did not pay any finances under this Settlement.
The court determined from the Out-of-court settlement concluded with reference to sec. 585 of the Slovak Civil Code by the [Seller], the 1st defendant and the [Buyer] in Bratislava on 26 April 2005; that the [Buyer] acknowledged that it paid to the [Seller] only the sum of 6,000.- EUR and is still owing for the goods delivered the sum of 5,632.16 EUR and the sum of 1,373.62 EUR as a reimbursement of the costs of attorneys' fees to the law firm S.L.S. on account of the [Seller] and to pay the costs of the judicial proceedings amounting to 53,803.- Sk to the legal counsel of the [Seller].
As both Italy and the Slovak Republic are Contracting States to the UN Convention on Contracts for the International Sale of Goods (no. 160/1991 Coll.), the court qualified the factual situation under the provisions of this Convention.
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 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.
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.
With reference to the evidence gathered, the court found the [Seller]'s action against the [Buyer] to be justified in its entirety. Under the contract of sale the [Seller] delivered the goods to the [Buyer] and asserted its right to payment of the purchase price by three invoices in total amount of 11,632.16 EUR and the [Buyer] paid only 6,000.- EUR of this amount. The [Buyer] acknowledged its obligation in the Out-of-court settlement concluded by the parties to the dispute on 26 April 2005 and promised to pay it within ten days after its signing. The [Buyer] also promised to pay to the [Seller] in the prescribed period the reimbursement of costs of the proceedings amounting to 1,373.62 EUR and to the [Seller]'s legal counsel the sum of 55,803.- Sk.
The [Seller] stated at the court proceedings held on 15 February 2006 that the [Buyer] did not fulfil its obligations under the Out-of-court settlement of 26 April 2005 and paid only the sum of 55,803.- Sk. Both the 1st defendant and the [Buyer] were duly summoned to this proceeding, were informed about the change of the action where the [Seller] claimed beside its right to payment of 5,632.16 EUR (enumerated in the action as 222,647.- Sk) also its right to reimbursement of the costs of legal aid as it was prescribed in the Settlement from 26 April 2005. If the [Buyer] had any objections to the arguments stated by the [Seller], it had a chance to express them or to prove at least a partial payment of these sums. The [Buyer] did not present any arguments and did not appear before the court.
The court therefore upheld the [Seller]'s action in its entirety and bound the [Buyer] to pay the sum of 5,632.- EUR with appurtenances, as is prescribed in the judgment and, with reference to the Out-of-court settlement of 26 April 2005, also to pay the reimbursement of the legal aid in the sum of 1,373.62 EUR which correspond to the costs of the [Seller] that emerged from asserting its claim from the [Buyer] and since the [Buyer] is in default with payment of the abovementioned sums, the court granted also the right to payment of the interest on these sums.
The court ruled on reimbursement of costs of the judicial proceedings with reference to sec. 142 part 1 CPC. The [Seller] was successful in asserting its claim against the [Buyer] and it was therefore granted the full reimbursement of its costs.
Since the action against the 1st defendant was dismissed in its entirety, the court bound the [Seller] with reference to sec. 142 part 1 CPC to pay to the 1st defendant reimbursement of its costs of the judicial proceedings in amount of 11,130.- EUR corresponding to the court-fee paid for the protest.
Instruction: An appeal against this judgment must be filed with the Supreme Court of the Slovak Republic via this Regional Court within fifteen days of its receipt in two versions.
Regional Court in Banska Bystrica, 10 May 2006
JUDr. Eva Kmetova
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Republic of Italy is referred to as [Seller] and Defendant of the Slovak Republic is referred to as [Buyer]. Amounts in the currency of the Slovak Republic (Slovak koruna) are indicated as [Sk]; amounts in the currency of the European Union (Euro) are indicated as [EUR].
** Juraj Kotrusz is a Slovak lawyer who studied law at the University of Trnava, Slovakia, and at the Hague Academy of International Law.Go to Case Table of Contents