Mexico 3 October 2006 Juzgado Primero Civil de Primera Instancia [Court of First Instance] de Lerma de Villada (Barcel S.A. de C.V. v. Steve Kliff)
[Cite as: http://cisgw3.law.pace.edu/cases/061003m1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 254/2004
CASE HISTORY: 2d instance reversed by the Superior Court of Justice, Second Panel on 21 November 2006; 3d instance on 13 March 2007 Second Panel for Civil Matters of the Second Circuit [Federal Court of Appeals] remanded the case to the Second Panel for Civil Matters to issue new decision; 4th instance Superior Court of Justice, Toluca 22 March 2007. For related U.S. proceeding, see Grace Label, Inc. v. Steve Kliff et al, 355 F.Supp.2d 965 (25 January 2005)
SELLER'S COUNTRY: United States (defendant)
BUYER'S COUNTRY: Mexico (plaintiff)
GOODS INVOLVED: Trading cards
MEXICO: Juzgado Primero Civil de Primera Instancia de Lerma de Villada 3 October 2006 (Barcel S.A. de C.V. v. Steve Kliff)
Case law on UNCITRAL texts (CLOUT) abstract no. 776
Reproduced with permission of UNCITRAL
The case deals with the goods' lack of conformity.
A Mexican company, dealing with salty snacks (the buyer), concluded an oral agreement with a California based seller to purchase foil trading cards.
Upon delivery of the goods, the buyer noticed their toxic and malodorous state, which made them totally unfit for the intended use in food packaging. Eventually, the buyer sued the seller for breach of contract due to lack of conformity of the goods.
The court found that the buyer had failed to notify the lack of conformity of the goods to the seller in a reasonable time. In particular, the court made reference to articles 38 and 39 CISG, relating to the reasonable time for the examination of the goods and to the time period for giving notice of lack of conformity. In discussing those articles, the court referred to article 383 of the Mexican Commercial Code, which establishes a five-day term for the buyer to inform the seller of apparent lack of conformity and a thirty-day term to inform of non-apparent lack of conformity, and concluded that the CISG and the domestic provisions were analogous. The court dismissed the lawsuit accordingly.Go to Case Table of Contents
APPLICATION OF CISG: Yes. However, the Court stated that article 383 of the Mexican Commerce Code establishes that a buyer must give written notice within five days following buyer's receipt of the goods when the goods received are in a lesser amount or of a different kind. With regard to latent defects ("vicios ocultor"), a buyer must give written notice within 30 days following receipt of the goods. The Court mentioned that this coincides with articles 38 and 39 of the CISG, a treaty whose applicability was raised by the lawyers for defendant Steve Kliff. Court concluded that regardless which law applied, the result was the same since these provisions were similar and that Barcel, S.A. de C.V. had failed to prove that adequate notice had been given to the US seller.
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1146&step=Abstract>
Spanish: CISG-Spain and Latin America database <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/rmexi8.htm>
CITATIONS TO TEXT OF DECISION
Original language (Spanish): Click here for Spanish text; see also CISG-Spain and Latin America database <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/smexi8.htm>
CITATIONS TO COMMENTS ON DECISION
Spanish: Arnau Muriá, Case commentary (November 2006)Go to Case Table of Contents