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CISG CASE PRESENTATION

Spain 31 October 2006 Supreme Court
[Cite as: http://cisgw3.law.pace.edu/cases/061031s4.html]

Primary source(s) of information for case presentation: CISG-Spain and Latin America website

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Case identification

DATE OF DECISION: 20061031 (31 October 2006)

JURISDICTION: Spain

TRIBUNAL: Tribunal Supremo, sección 1ª, sala de lo Civil

JUDGE(S): Don Juan Antonio Xiol Ros

CASE NUMBER/DOCKET NUMBER: No. 1062/2006

CASE NAME: D. Tomás y Dª Almudena v. Don Casimiro y Doña María Milagros

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Spain

BUYER'S COUNTRY: Spain

GOODS INVOLVED: Real property


Case abstract

SPAIN: Tribunal Supremo, 31 October 2006

Case law on UNCITRAL texts (CLOUT) abstract no. 736

Reproduced with permission of UNCITRAL

Abstract prepared by Pilar Perales Viscasillas, National Correspondent

A Spanish buyer and a Spanish seller entered into a contract for the purchase of a real property. At the time of the contract, the seller was aware of the rights of a third party to the same real property pursuant to a verbal contract. The third party filed its claim after the buyer and the seller had signed the contract. When the buyer found out about the third party's claim, it withdrew from the contract and claimed its money back for breach of performance of the seller.

The claim was upheld and the seller appealed, until the case came before the Supreme Court. The court discussed the concept of a fundamental breach of one party, which would give the right of avoidance to the other. The court noted that a fundamental breach needed to take place intentionally and that this definition had been progressively specified in its jurisprudence, i.e. the breach needed to be a substantial violation of the contract leading to the failure of the legitimate expectations of the other contracting party. The court also observed that this evolution adjusted to the requirements of a fundamental breach contained in article 25 CISG, giving the right of avoidance pursuant to article 49 CISG, and also to the European Principles of Contract law. The court further noted that the dispositions of an international convention which formed part of its legal regime and that were also embodied into national law (commercial law) should help in the application of national law by interpreting it in accordance with the current social and legal development of the country. Consequently, the court held that the seller committed a fundamental breach by selling real property that was encumbered with the claim of a third party and it rejected the seller's appeal.

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Classification of issues present

APPLICATION OF CISG: No, dicta reference to CISG

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 25

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/cisg/respan56.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan56.htm>; see also Aranzadi/Westlaw 2006\8405

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated November 8, 2007
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