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CISG CASE PRESENTATION

Switzerland 27 October 2006 Canton Appellate Court Valais (Bicycle and motorcycle parts case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/061027s1.html]

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

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Case identification

DATE OF DECISION: 20061027 (27 October 2006)

JURISDICTION: Switzerland

TRIBUNAL: Tribunal Cantonal [Appellate Court] Valais

JUDGE(S): Jérôme Emonet (président), Hermann Murmann, Dr. Lionel Seeberger (juges), Christian Roten (greffière)

CASE NUMBER/DOCKET NUMBER: C1 06 124

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Bicycle and motorcycle parts


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 4 ; 7(2) ; 30 ; 35 ; 54 ; 58 ; 59 ; 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 (French): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1563.pdf>

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

Higher Cantonal Court (Tribunal cantonal) Valais

27 October 2006 [C1 06 124]

Translation [*] by Nathalie Hofmann [**]

Plaintiff [Seller], of Chambèry, France, represented by Maître Cédric Bossicard, attorney at law in Martigny, v. Defendant [Buyer], registered office in Sion, Switzerland, defaulting.

Procedure

     1. By statement of claim of 7 February 2005, [Seller] brought an action for acknowledgement of a claim against [Buyer]. [Seller] makes the following submissions:

      1. The claim shall be allowed.

      2. [Buyer] shall be ordered to pay [Seller], which is the sole owner of "Loridon Cycles" in Chambery, France, the following amounts:

            a)  Sf [*] 2,820.20 (1,815 €), with interest at 5 % per year running from 16 August 2004;
            b)  Sf 467.70 (301 €), with interest at 5 % per year running from14 October 2004;
            c)  Sf 326.31 (210 €), with interest at 5 % per year running from 20 October 2004;
            d)  Sf 4,349.40 (2799.10 €), with interest at 5 % per year running from 20 October 2004;
            e)  Sf 2,624.45 (1,689 €), with interest at 5 % per year running from 10 December 2004;
            f)  Sf 486 (312.75 €), with interest at 5 % per year running from 28 May 2005;
            g)  Sf 964.50 (620.72 €), with interest at 5 % per year running from 4 June 2005.

      3. A definite dismissal of the objection to the debt collection procedure no. 76501 at the Office des Poursuites et Faillité [*] in Sion shall be accorded.

      4. All costs of these proceedings and the judgment as well as the costs of the debt collection procedure shall be borne by [Buyer], who, in addition, shall pay [Seller] an equitable indemnification for its expenses.

On 7 February 2006, the second district judge of Sion gave [Buyer] time until 28 February 2006 to submit a response. On 17 July 2006, he set another time limit until 24 August 2006 to comply. On 25 August 2006, the magistrate set an ultimate period of 10 days for [Buyer] to submit its statement of defense, on penalty of default. [Buyer] did not comply with any of these orders, each and every one having been sent to the office of Maître R, the sole director of [Buyer], this office being [Buyer]'s registered office according to the entries in the commercial register.

On 7 September 2006, the records of this case were transferred to the Higher Cantonal Court (Tribunal Cantonal) for examining of the conditions of default

The reasoning of the Tribunal cantonal

I. Preliminary

      2.  2.1 [Buyer] did not submit a statement of defense although it was duly ordered to do so in conformity with Arts. 99 and 129 CPC. [*] The last order expressly mentioned the legal consequences of default (Art. 97(1) CPC). After having been informed about the transmission of the records to this judging authority, the non-defaulting party has not renounced in writing after the default (Art. 100 and 101 (5) CPC). A default judgment may thus be rendered (Art. 102 CPC); the sum involved in the action of 12,038 Sf (Art. 15 (1) CPC) establishes the competence of the seized court to decide in sole cantonal instance (Arts. 23 (1)(b) CPC and 46 OJ; [*] RVJ [*] 1994 p. 125).

            2.2 In the terms of Art. 102 (1) CPC, in case of a judgment by default, the alleged facts and the submissions of the non-defaulting party are admitted as true unless it results from the records or the legal situation that the claim is manifestly inadmissible or unfounded. A claim which permits a legal interpretation justifying its allowance is not manifestly inadmissible, as long as its inexactness does not result from the records. The judge cannot be compelled by the rules of procedure to excuse an inexact application of the material law with his authority (RVJ 1995 p. 164 consid. [*] 1c; 1992 p. 205 consid. 1c and the cited references; Ducrot, Le droit judiciare privé valaisan, 2000, p. 420).

II. Ruling on the facts

      3. It results from allegations of [Seller], not contradicted by the records, that:

      The [Seller] has a wholesale and retail store for bicycle and motorcycle spare parts in Chambery, France. [Buyer]'s business is notably to buy and sell all kinds of materials used for manufacturing of bicycles.

      [Buyer] passed several orders to [Seller] concerning saddles, carbon fiber seatposts, wheels, tires and frames for bicycles in particular. [Seller] delivered the ordered goods, the quality of which had never been contested. There is neither a declaration nor a document in the records regarding the dates of delivery. The delivered goods figure on the following Bills, of which copies are in the records:

  • Bill no. 259
  • 1,815.00 €
  • Bill no. 294
  • 301.00 €
  • Bill no. 300
  • 210.00 €
  • Bill no. 317
  • 2,799.10 €
  • Bill no. 5351          
  • 1,689.00 €
  • Bill no. 5490
  • 312.75 €
  • Bill no. 5491
  • 620.72 €

    These amounts remain unpaid. On 4 August 2005, [Buyer] was notified of the summons to pay no. 76501 of the Office des Poursuites of Sion, concerning the amount of 12,091.60 Sf - which is the amount owed in Euro converted into Swiss francs at the "exchange rate of the day" -- with interest at 5 % per year running from 27 July 2005. The basis for this obligation to pay was described as follows:

    Bill no. 259 for 1,815 €; Bill no. 294 for 301 €; Bill no. 300 for 210 €; Bill no. 317 for 2,799.10 €; Bill no. 5351 for 1,689 €; Bill no. 5490 for 312.75 €p; and Bill no. 5[4] 91 for 620.72 €: in total amounting to 7747.57 € (1 € = 1.56 Sf at the exchange rate of the day)

    [Buyer] filed an objection.

    III. Ruling on the law

          4. Despite the Plaintiff [Seller]'s residence in France, the courts of the place of the Defendant [Buyer]'s registered office, which is here in Valais, Switzerland are competent (Art. 2 CL [*] and 112 LDIP; [*] RVJ 1995 p. 164 consid. 1a; Bucher / Bonomi, Droit international privé, 2004, p. 245).

          5. The contracts concluded in the case at hand concern the sale of movable objects (cf. infra consid. 6) between parties having their residence or place of business in different countries; the CISG is thus applicable as an autonomous law (Art. 1(1)(a) CISG; RVJ 1995, as cited above, consid. 2 a) prevailing over Art. 118 LDIP for all questions governed by the Convention (Dutoit, Commentaire LDIP, 2005, Art. 118 LDIP no. 9)

          6. A contract of sale in the sense of the CISG is defined as contract by which the seller engages to deliver goods and to transfer the property in the goods, while the buyer engages to pay the price and to take delivery (Arts. 30 and 53 CISG; Tercier, Les contrats spéciaux, 2003, no. 1361). This is the case at hand, since [Seller] engaged to deliver to [Buyer] movable objects, against payment of the agreed price.

          7. Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the law applicable by virtue of the rules of private international law (Art. 7(2) CISG), which in this case leads to the applicability of the law of the country where the Seller has its residence at the moment at which the order is received (Arts. 117 and 118 (1) LDIP and Arts. 1 and 3 (1) of the Hague Convention on the Law Applicable to Contracts of International Sales of Movable Goods (RS [*] 0.221.211.4), which remains applicable according to Art. 57 no. 1 CL); thus, in this case, French law is applicable.

          8. The CISG does not contain any provision concerning the currency or the means of payment (RVJ 1999, p. 227 consid. 3c; Tercier, no. 1510). In the absence of contractual conditions specifying the currency of the payment, it is determined by the national law, designated by the rules of conflict of laws (RVJ 1999, p. 227, as cited above, consid. 3c; Neumayer / Ming, Commentaire LDIP, 1993, Art. 54 CISG, no. 4).

    In the case hand, the prices figuring on the bills are definitely expressed in Euros. On the other hand, the summons to pay and the amounts claimed in the action refer to Swiss francs. In conclusion, the parties have agreed that the currency of payment is Swiss francs (Art. 102 (1) CPC).

          9. Nothing in the records establishes that the [Seller] did not deliver goods in conformity with what had been stipulated in the various contracts concluded (Art. 35(1) CISG). Since [Buyer] did not pay the billed amounts corresponding to the delivered goods, [Buyer] is to be ordered to pay [Seller] the amount of 12,038 Sf (rounded) corresponding to the six bills expressed in Euro, the amounts having been converted into Swiss francs, as requested (Art. 102 (1) CPC), according to the exchange rate of the day.

          10. In the absence of an agreement to the contrary, the buyer is in default of payment from the date of delivery, without the need for any request on behalf of the seller (Arts. 58(1), 59(1) and 78 CISG; RVJ, as cited above, consid. 2b/bb). The buyer can from this moment claim interest on the due sum (Art. 78 CISG, Tercier, no. 1523 and the references cited above).

    In the case at hand it is impossible to determine when the different goods had been delivered. Thus, subsidiarily, one needs to refer to the rules of French law (supra consid. 7) to fix the moment of default. In the terms of Art. 1153 (2) CCfr. [*], monetary interest is not due before the date of the order to pay or and equivalent act. The notification of the summons to pay on 4 August 2005 can thus be considered as the first order to pay (Tercier, no. 1523) and thus as the beginning of the default.

          11. The CISG does not provide for an interest rate. The interest rate therefore has to be determined according to French law (supra consid. 7). In the terms of Art. L. 313-2 of the French monetary and financial code the legal interest rate is fixed by decree for the duration of one calendar year. By decree of 10 February 2005, published in the Journal Officiel [*] of 17 February 2005, the legal interest rate was fixed at 2.05 % for the year 2005; for 2006 the interest rate was fixed at 2.11 % by decree of 31 January 2006, published in the Journal Officiel of 7 February 2006.

    Consequently, the 12,038 Sf. bear interest at 2.05% from 4 August until 31 Decmber 2005, then 2.11 % from 1 January 2006.

          12. The seized court, when ruling on the action for acknowledgement of debt, can also pronounce the definite dismissal of the objection against a summons to pay a fixed sum, obligatorily expressed in Swiss francs.

    In consequence, the definite dismissal of the objection filed against the summons to pay in the debt collection procedure no. 76501 at the Office des Poursuites in Sion is pronounced; the debt is acknowledged to amount to 12,038 Sf plus interest at the rate of 2.05% from 4 August until 31 December 2005, then 2.11 % from 1 January 2006.

          13. Since [Seller] succeeded essentially in the action, the costs and expenses are at the burden of [Buyer] (Art. 252 (1) and Art. 260 (1) CPC). They are calculated on the basis of the principles established by the LTar. [*]

    In accordance with Art. 14 (1) LTar, for civil, pecuniary claims for an amount between 8001 Sf and 20,000 Sf, fees are fixed between 1000 Sf and 3000 Sf. In case of a judgment by default Art. 12 (1) LTar provides for a proportional reduction of the fees. Particularly with regard to the sum involved in the action, to the nature and to average difficulty of the case, as well as to the default of [Buyer] which occurred during the first exchanges of written submissions, the legal charges are set at 800 Sf, to be taken from advances, 1000 Sf, which were paid by [Seller]. [Buyer] is ordered to pay to [Seller] 800 Sf as reimbursement for the advances, the remainder, amounting to 200 Sf, will be reimbursed to the [Seller] by the clerk.

    A party who is represented by a lawyer has a right to expenses. These are fixed extensively and encompass the compensation on which the party can insist as well as the lawyer's fees (Art. 3 LTar). In consideration of the average difficulty of the case, of the extent of the work, of the time necessarily spent for the case and of the state of the procedure at which the default occurred, the remuneration of the lawyer of the [Seller] is to be fixed at 725 Sf., expenses included. Consequently, the [Buyer] has to pay a compensation of 725 Sf for expenses to [Seller].

    On these grounds,

    PRONOUNCES

    1. [Buyer] has to pay 12,038 Sf to [Seller], plus interest at the rate of 2.05 % from 4 August until 31 December 2005 and of 2.11 % from 1 January 2006.

    2. The objection filed against the summons to pay in the debt collection procedure no. 76205 at the Office des Poursuites in Sion is definitely dismissed; the debt is acknowledged to amount to 12,038 Sf, plus interest at the rate of 2.05 % from 4 August until 31 December 2005 and of 2.11 % from 1 January 2006.

    3. The legal charges of 800 Sf have to be borne by [Buyer].

    4. [Buyer] is ordered to pay to [Seller] compensation amounting to 725 Sf for expenses and 800 Sf as reimbursement for the advances.

    As judged in Sion on 27 October 2006.

    [...]

    REVISION OF THE JUDGMENT (ART. 108 CPC)

    The defaulting party is advised of the fact that revision of the present judgment can be demanded, within 10 days from the notification, by official summons (in triplicate) of the opposing party before the judge who instructed the case in order to settle the procedural costs, including those of the hearing for revision, and in order to be admitted to attend the proceedings. In case of default of the requesting party at the hearing for revision, the judgment becomes definite. If the request for revision is admitted, the proceedings will be resumed at the state in which they were when the defaulting party discontinued its attendance.


    FOOTNOTES

    * All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of France is referred to as [Seller] and Defendant of Switzerland is referred to as [Buyer]. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sf].

    Translator's notes on other abbreviations and entries: CCfr. = Code Civil français [French Civil Code ]; CL = Convention de Lugano [Lugano Convention of 16 September 1988 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters]; consid. = considérant [motivation for the decision; refers to the paragraph in the cited decision]; CPC = Code de Procédure Civile [Code of Civil Procedure of the Canton Valais]; Journal Officiel = Official journal of the French Republic; LDIP = Loi fédérale sur le droit international privé [Federal law on private international law]; LTar = Loi valaisanne fixant le tariff des frais et dépens devant les autorités judiciaries ou administratives du 14 mai 1998 [Law of the Canton Valais fixing the rate of costs and expenses before judicial and administrative authorities]; Office des Poursuites et Faillité = Swiss administrative authority responsible for debt collection procedures; RS = Recueil systématique du droit féderal [Systematic collection of federal laws].

    ** Nathalie Hofmann is a law student at Humboldt- University Berlin. During the academic year 2007-2008, she studied at the University of Geneva, where she obtained the "Certificat du droit transnational" in the summer of 2008. As a member of the Geneva team, she participated in the 15th Willem C. Vis International Commercial Arbitration Moot.

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