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CISG CASE PRESENTATION

Slovak Republic 23 June 2006 Regional Court in Nitra (Raw material for women's coats case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060623k1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20060623 (23 June 2006)

JURISDICTION: Slovak Republic

TRIBUNAL: Regional Court in Nitra

JUDGE(S): Mgr. Pavel Lukac

CASE NUMBER/DOCKET NUMBER: 16 Cb/119/2004

CASE NAME: Unavailable

CASE HISTORY: 2d instance Supreme Court 3 April 2008 [affirming]

SELLER'S COUNTRY: Czech Republic (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: Raw material for women's coats


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 54 ; 62 ; 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

Regional Court in Nitra

23 June 2006 [16 Cb/119/2004]

Translation [*] by Juraj Kotrusz [**]

JUDGMENT
IN THE NAME OF THE SLOVAK REPUBLIC

The Regional Court in Nitra, deciding by a single judge, Mgr. Pavel Lukac, in the case of Plaintiff N., a.s. [Seller], with its registered office in K., O. Czech Republic, versus Defendant E., S.r.o. [Buyer], with its place of business in C, M. ___, T [Slovak Republic], represented by attorney JUDr. J.U., regarding payment of 254,561.24 Slovak koruna [Sk] and interest of 14.25% annually on this sum for the period from 18 September 2001 until payment, at the hearing held 25 October 2007

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 5,474.44 EUR with interest of:

-    3% annually on the sum of 570.27 EUR for the period from 8 April 2003 until payment;
-    4% annually on the sum of 3,536.87 EUR for the period from 31 July 2002 until payment;
-    3.5% annually on the sum of 3,407.97 EUR for the period from 18 November 2002 until 28 January 2003; and
-    3.5% annually on the sum of 1,367.30 EUR for the period from December 13, 2002 until payment; and
-    a sum in the amount of 25,435.- Sk as a reimbursement of costs of the proceedings within three days after the judgment comes into force on the account of the legal costs of the [Buyer] JUDr. J.U.

The court does not grant the [Buyer] the right to exemption from the duty to pay the court fees.

REASONING

By its action filed with the court on 5 November 2004, the [Seller] claimed the right to payment of 8,841.64 EUR with appurtenances as the purchase price for goods delivered. The [Seller] stated in its action that pursuant to the purchase order sent by the [Buyer] and the subsequent agreement of the parties to the dispute:

   -    [Seller] delivered the goods to the [Buyer] on 28 June 2002 and, on the same day, drew invoice no. 2980112 for the sum of 1,896.80 EUR due on 12 July 2002.
 
   -    Subsequently, the [Seller] delivered goods to the [Buyer] on 16 July 2002 and, on the same day, drew invoice no. 2980121 for the sum of 3,536.87 EUR due on 30 July 2002.
 
   -    Another delivery was performed on 19 August 2002 where the [Seller], on the same day, drew invoice no. 2980129 for the sum of 3,407.97 EUR due on 17 November 2002.

Since the [Buyer] did not pay the sums owed, the [Seller] asserted its claim before the court.

The court issued an Order to pay on 25 August 2005, whereby it bound the [Buyer] to pay the sums prescribed in the action within 15 days after receiving it. The [Buyer] filed a protest against this order, arguing that the claim is unjustified as it was entirely settled and paid.

With reference to sec. 174 part 2 of the Slovak Civil Procedure Code (hereinafter referred to as "CPC"), an Order to pay is cancelled when a protest is filed against it and therefore the court tried the case.

By its motion of 2 December 2005, the [Seller] partially withdrew its action in the sum of 987.20 EUR and at the same time asserted its right to payment of the sum of 1,367.30 EUR based on invoice no. 2980159 drawn for this sum, thereby claiming its right to payment of principal of 7,854.44 EUR and appurtenances as it was changed by this motion.

Subsequently, by its motion of 13 March 2006, the [Seller] partially withdrew its action in the sum of 2,380.- EUR and claimed its right to payment of principal of 5,474.44 EUR and appurtenances in its corrected amount. The court approved this change of the action by its resolution of 22 May 2006 and stayed the proceedings with regard to the sum withdrawn by the [Seller] in accordance with sec. 96 CPC.

The court examined evidence by reading the submitted documents: invoices no. 2980112, no. 2980121 and no. 2980159 and corresponding customs declarations and thereby determined this factual and legal situation.

   -    Upon a mutual agreement of the parties to the dispute, the [Seller] delivered the goods to the [Buyer] on 28 June 2002 in value of 1,869.80 EUR, on 16 July 2002 in value of 3,536.87 EUR, and on 13 September 2002 in value of 1,367.30 EUR. The delivery of the goods was proved by presenting the customs declarations to these goods. The [Buyer] did not oppose in the proceedings either the delivery or the amount of the purchase price invoiced.
 
   -    With reference to the abovementioned, it is clear that the parties to the dispute concluded an international contract of sale under the UN Convention published as no. 160/1991 Coll. (hereinafter referred to as "UN Convention"). Under art. 54 of the UN Convention, the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention. Furthermore, with regards to the payment of the purchase price, under art. 54 the buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made. It is a basic right of the seller to require the buyer to pay the price, take delivery of goods and perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement (art. 62 of the UN Convention). No such circumstance connected with breach of the contract has been proved in the proceedings that would prevent the [Seller] from claiming its right to payment of the purchase price.

The court found [Buyer]'s arguments about payment of the invoices or about drawing invoices also to company L.T. being unjustified, since the [Buyer] did not satisfy its burden of proof with regards to these arguments and provided no evidence thereon. Furthermore, proving of double-invoicing of the purchase price does not deprive the [Buyer] of its obligation to pay the purchase price for the goods delivered to the [Buyer] with reference to the abovementioned articles. The [Buyer] also did not prove any relevant fact that would justify its argument that its obligation to pay the purchase price ceased to exist because of the payment of a third party.

With reference to the abovementioned evidence, the court concluded that the [Seller]'s claim is justified in its entirety and upheld its action, as it is stated in the judgment. The court ruled on interest in accordance with art. 78 of the UN Convention with respect to particular maturity dates of the invoices and partial payments made.

The court at the same time decided not to grant the exception from duty to pay the court fees with reference to sec. 138 part 1 CPC. The [Buyer] based its petition for such exception from 14 April 2006 on the fact that, as a practical matter, it has not been running a business for a considerable time and has no finances to pay the court fee. The [Buyer] evidenced this fact by its accounting statement for 2004, which is not relevant, as it does not reflect the actual situation of the company. Furthermore, the court ruled on this petition in its final judgment, when it was clear that [Buyer]'s arguments were not persuasive and its defense was clearly unsuccessful. This constitutes a reason why not to grant such exception.

The court ruled on the reimbursement of the costs of judicial proceedings under sec. 142 part 1 and granted to the [Seller], as successful party to the dispute, full reimbursement of the costs of the judicial proceedings.

Instruction: An appeal against this judgment must be filed with via this court within fifteen days after its receipt.

Regional Court in Nitra, 23 June 2006

JUDr. Pavel Kovac
Judge


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Czech Republic 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 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

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Pace Law School Institute of International Commercial Law - Last updated January 5, 2009
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