Spain 22 May 2006 District Court Badalona (Wolfram R. Seidel GmbH v. Crotton S.A.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060522s4.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: Rollo No. 574/2003-A
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Spain (defendant)
BUYER'S COUNTRY: Germany (plaintiff)
GOODS INVOLVED: Automobiles
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
49A1 [Buyer's right to avoid contract (grounds for avoidance): fundamental breach of contract]; 73B [Anticipatory breach (avoidance in installment contracts): refusal of future installments]; 74A ; 74A1 [General rules for measuring damages: loss suffered as consequence of breach; Includes loss of profit]; 84A [Restitution of benefits received: seller bound to refund price must pay interest]
Descriptors:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1145&step=Abstract>
Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/cisg/respan50.htm>
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan50.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1145&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
Unavailable
Go to Case Table of ContentsCase text (English translation) [second draft]
Queen Mary Case Translation Programme
FACTS OF THE CASE
Plaintiff [Buyer] requested from the Defendant [Seller] the payment of € 40,686.11 as a result of the termination of a contract for the sale of cars.
The contract asserted that the delivery of the goods would be in the Middle East and that the [Buyer] would pay in advance, including the cost of transportation to Dubai, the total price of € 129,154.48. The contract also set out that the [Buyer]'s customer would resell the goods in the Middle East. Nevertheless, before the date of delivery, the [Seller] ascertained that the [Buyer]'s customer would possibly resell the goods to Japan, a place where the [Seller] had an exclusive distributor. Therefore, the [Seller] immediately notified the [Buyer] that it would not deliver the goods. The [Buyer] alleged that it asked the [Seller] to respect their contract, but the [Seller] refused to perform its central obligation.
Nonetheless, the [Seller] paid back the principal amount previously anticipated by the [Buyer], however, discounting the amount of € 257.12 (bank transfer costs). [Seller] alleged that the [Buyer] had breached its obligation of reselling the goods exclusively to customers in the Middle East and that this contradictory behavior by the [Buyer] was an anticipatory breach of contract, which would exempt the [Seller] from paying interest and unpaid extra costs.
[Buyer] requested from the [Seller] return of the remaining unpaid amount (€ 257.12), as well as legal fees related to the expenses with [Seller]'s notification (€ 4.070,47), lost profits (€ 36,000) and legal interest (€ 358.52).
ON THE ABOVE
The Court of First Instance sustained [Buyer]'s claim in its entirety.
The Court a quo applied the United Nations Convention on International Sales of Goods (Art. 1(1) CISG) and held that the contract had been concluded in accordance with Art. 23 CISG. Moreover, the Court stated that the [Buyer] was not contractually responsible to assure that its customers would not resell the goods to places far from the Middle East.
The Court held that the [Buyer] did not commit an anticipatory breach of contract because its obligation was only to deliver the goods to a customer based in the Middle East, not to oversee the later destination of the goods. Additionally, the Court stated that the contract was neither a distributorship contract, nor an installment contract governed by Art. 73(2) CISG. Accordingly, the [Seller] could not avoid the contract by claiming an anticipatory breach by the [Buyer].
Finally, the Court decided that the [Buyer] performed its obligations and the [Seller] breached its central obligation to deliver the goods. Consequently, the [Buyer] was allowed to declare the contract avoided under Art. 49(1)(a) CISG and to claim damages in accordance with Article 45(1) (a) CISG.
ON THIS GROUND
The Court sustained [Buyer]'s claim and compelled the [Seller] to repay the amount due, in accordance with Art. 81(2) CISG, plus interest on that amount under Art. 84(1) CISG. The Court also granted to the [Buyer] the payment of legal fees as well as lost profits (Art. 74 CISG) calculated as the difference between the purchase price and the price agreed by the [Buyer] and its customer.
[...]
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff is referred to as [Buyer]; Defendant is referred to as [Seller]. Amounts in European currency (Euros) are indicated as [€].
** Luiz Gustavo Meira Moser is a member of the Brazilian Arbitration Committee, YIAG, Association Suisse d'Arbitrage (ASA), ICDR, International Law Association - Brazilian Committee and Queen Mary Case Translation Programme participant. Moser is the Brazilian correspondent in the Global Sales Law Project.
Go to Case Table of Contents
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Institute of International Commercial Law - Last updated July 16, 2008