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CISG CASE PRESENTATION

Slovak Republic 17 May 2006 District Court in Nitra (Agricultural products case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060517k1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20060517 (17 May 2006)

JURISDICTION: Slovak Republic

TRIBUNAL: District Court in Nitra

JUDGE(S): JU Dr. Jana Coboriova

CASE NUMBER/DOCKET NUMBER: 23 Cb/29/2006

CASE NAME: K.N.R.A.-L, (M.O.M.) v. M., S.r.o.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Greece (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: Agricultural products


Classification of issues present

APPLICATION OF CISG: Yes.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 11 ; 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

17 May 2006 [23 Cb/29/2006]

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 C.L.S.A., [Seller], with its registered office in K. N. R. A.-L. (M. O. M.), Greece (Hellenic Republic) ..., represented by attorney Mgr. Ing. V.N., versus Defendant M., S.r.o. [Buyer], with its registered office in S. ___, V. [Slovak Republic], regarding payment of 77,171.94 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 77,171.94 EUR and interest of 9% annually:

-    on the sum of 24,939.60 EUR for the period from 10 December 2003 until payment;
-    on the sum of 24,427.95 EUR for the period from 28 October 2003 until payment;
-    on the sum of 24,330.- EUR for the period from 9 December 2003 until payment;
-    on the sum of 3,474.39 EUR for the period from 5 October 2003 until payment;

Everything within three days after the judgment comes into force.

The [Buyer] is obliged to pay to the [Seller] the sum of 235,354.- 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 21 July 2005 its right to payment of 77,171.94 EUR with appurtenances as the purchase price for goods delivered to the [Buyer].

Legal counsel of the [Seller] stated in the action that the [Seller] delivered goods to the [Buyer] totally for 95,372.55 EUR and the [Buyer] did not pay this sum partially in amount of 77,171.94 EUR. Since the [Buyer] did not pay the full purchase price in the prescribed time, the legal counsel of the [Seller] urged it to do so by letters addressed to the registered office of the [Buyer], as it is recorded in the Companies Register. The [Buyer] did not take delivery of any of these letters.

On 21 September 2005, the District Court in Nitra issued Order to Pay, rec. no. 27Rob 452/2005-57. The court was not able to deliver the order to the [Buyer] at the address of its registered office, as it is recorded in the Companies Register and on 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 16 February 2006, rec. no. 27Rob 452/2005-63.

The parties to the dispute did not appear before the court at the court proceedings held on 17 May 2006. 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 parties to the dispute concluded an oral contract of sale under which the [Seller] delivered to the [Buyer] agricultural products for a mutually agreed purchase price. Concluding of the contract was preceded by mutual e-mail correspondence. The goods were delivered in four deliveries, as they are evidenced by international bills of lading and certificates of delivery. The invoices drawn by the [Seller] were not paid by the [Buyer] duly and on time. The [Buyer] partially paid for the invoice no. 126/03, whereby this invoice remained partially unpaid in sum of 3,474.39 EUR. The contract of sale was concluded under the Slovak Commercial Code and the [Seller] claimed also its right to payment of interest with reference to this Code.

The court gathered evidence by reading submitted documents: records from companies registers of both parties, certificates of interest rates from commercial banks in Slovakia, letter from the [Seller] of 3 May 2005 enclosed by certificate of attempt for delivery, letter from the [Seller] of 26 May 2005 enclosed by certificate of attempt for delivery, invoice no. 210/03, CMR no. 1722564, certificate of delivery of 29 September 2003, invoice no. 201/03, CMR no. 1523578, certificate of delivery of 9 October 2003, invoice no. 161/03, CMR no. 6597145, certificate of delivery of 19 August 2003, invoice no. 126/03, CMR no. 1030214, certificate of delivery of 7 July 2003.

The court thereby investigated this factual situation:

   -    The [Seller] drew invoice no. 20792 on 7 July 2003 for 21,615.- EUR, whereby it claimed its right to payment of the purchase price for delivery of agricultural products. The goods were handed over to the carrier for transmission to the [Buyer] on 7 July 2003, as it is evidenced by international bill of lading no. SK 1030214.
 
   -    The [Seller] drew invoice no. 161/03 on 11 August 2003 for 24,330.- EUR, whereby it claimed its right to payment of the purchase price for delivery of agricultural products made on 12 August 2003 (international bill of lading no. CZY 6597145).
 
   -    The [Seller] drew invoice no. 201/03 on 29 September 2003 for 24,427.95 EUR, whereby it claimed its right to payment of the purchase price for delivery of agricultural products made on 29 September 2003 (international bill of lading no. SK 1523578).
 
   -    The [Seller] drew invoice no. 210/03 on 9 October 2003 for 24,939.60 EUR, whereby it claimed its right to payment of the purchase price for delivery of agricultural products made on 9 October 2003 (international bill of lading no. SK 1722564).

With reference to these four invoices, the [Buyer] was obliged to pay to the [Seller] purchase price in total amount of 95,372.55 EUR.

   -    The [Buyer] partially paid the purchase price in sum of 18,200.61 EUR for invoice no. 126/03. The [Buyer] did not pay the part of the purchase price in amount of 77,171.94 EUR and its legal counsel urged the [Buyer] to do so by letters of 3 May 2003 and 26 May 2003, but without any reply.
 
   -    Invoice no. 126/03 was due on 4 October 2003, invoice no. 161/03 was due on 8 December 2003, invoice no. 201/03 was due on 27 October 2003, and invoice no. 210/03 was due on 9 December 2003.

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 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 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.

The parties to the contract are entrepreneurs with registered office in Greece and Slovakia, i.e., in Contracting States of the Convention and their contractual relationship shall therefore be governed by the UN Convention on Contracts for the International Sale of Goods.

With reference to the evidence gathered, the court found that the parties to the dispute concluded a contract of sale governed by the Convention, since there is no requirement of specific form for the contract. The [Seller] fulfilled its obligation under article 30 of the Convention to deliver the goods to the [Seller] and transferred the property to the goods. The goods were delivered by handing them over to the carrier for transmission to the [Buyer], as it was evidenced by international bills of lading. According to article 53 of the Convention, the [Buyer] was obliged to pay the price for the goods and take delivery of them. The [Buyer] did not prove payment of the whole purchase price, as it was invoiced. The court therefore found the [Seller]'s claim asserted by the action to be justified in its entirety and 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. The Convention does not prescribe interest rate and since the [Seller] argued that the contract of sale was concluded under Slovak law, the court granted the right to interest with reference to sec. 369 part 2 and sec. 502 part 1 of the Slovak Commercial Code as amended.

Under sec. 369 part 1 of the Slovak Commercial Code, if a debtor is in default in fulfilment of a monetary obligation or its part, and no rate for paying interest on the sum in arrears has been agreed upon, the debtor is obliged to pay interest on the sum in arrears as stipulated in the contract, otherwise at an interest rate ten percent higher than the official interest rate published by the Slovak National Bank applicable at the day before the first day of the half-year, when the default started. This interest rate is applicable for the whole period of that half-year.

Under sec. 502 part 1 of the Slovak Commercial Code, from the time that the monetary means are provided, the debtor is to pay interest at the agreed rate, otherwise at the highest rate stipulated by the law or based on this Act. If the interest rate is not stipulated in this manner, the debtor is to pay the usual rate of interest required by banks, when providing credit, at the debtor's registered office of business at the time of the conclusion of the contract. If the parties agree the payment of interest rates higher than the rate stipulated by law or based on this Act, the debtor is to pay the rate of interest at the highest permissible rate.

The official interest rate in Slovakia was 10.5% at the time of beginning of the [Buyer]'s default, but since the [Seller] claimed its right to payment of interest only for 9%, the court granted it. The court found the [Seller]'s claim asserted by the action consisting of principal and appurtenances to be justified in its entirety and upheld it.

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 147,870.- Sk and reimbursement of costs of legal aid in amount of 87,484.- Sk, totally 235,354.- 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, 17 May 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 the Greece 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 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 November 1, 2013
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