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CISG CASE PRESENTATION

Spain 6 November 2006 Appellate Court Girona (Quartz case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/061106s4.html]

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

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Case identification

DATE OF DECISION: 20061106 (6 November 2006)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial Girona, sección 1

JUDGE(S): Joaquim Miguel Fernéndez Font

CASE NUMBER/DOCKET NUMBER: Recurso No. 524/2006

CASE NAME: Quarella S.p.A. v. Marbres I Granets de la Selva S.L.

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 6 de Girona 18 May 2006 [affirmed]

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Spain (defendant)

GOODS INVOLVED: Quartz


Case abstract

SPAIN: Audiencia Provincial de Gerona 6 November 2006 (Quartz case)

Case law on UNCITRAL texts (CLOUT) abstract no. 798

Reproduced with permission of UNCITRAL

Abstract prepared by Maria del Pilar Perales Viscasillas, National Correspondent

The Italian seller argued that the period of time during which the Spanish buyer could plead unsuitability of the material supplied (quartz) in order to avoid paying the price had elapsed. In this connection, the court of second instance examined CISG articles 38(1) and 39. Taking into account the fact that the merchandise had been delivered on 29 April 2002 and on 8 July 2003, and considering the documentation provided by the buyer in response to the arguments of the seller, the court found it demonstrated that the dissatisfaction of the buyer with the merchandise had been communicated to the seller before the period of two years provided for in CISG article 39. As additional evidence of the buyer's notification of dissatisfaction with the goods to the seller, in March 2004 the buyer had proposed a negotiated solution to the dispute. This, in the opinion of the court, confirmed the buyer's argument that, in view of its dissatisfaction with the material supplied, it had initiated a serious of conversations and negotiations with the seller with a view to resolving the dispute. The foregoing took place before the two-year period had expired.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 39(2) [Also cited: Article 38 ]

Classification of issues using UNCITRAL classification code numbers:

39B [Requirement to notify seller of lack of conformity: cut-off period of two years]

Descriptors: Lack of conformity notice, timeliness ; Waiver ; Estoppel

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1255&step=Abstract>

Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/cisg/respan64.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan64.htm>; see also Fuente: Aranzadi Westlaw JUR 2007\182704; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1255&step=FullText>

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

Girona Appellate Court 6 November 2006
Quarella S.p.A. v. Marbres i Granets de la Selva S.L.

Translation [*] by Luiz Gustavo Meira Moser [**]

FACTS OF THE CASE

Plaintiff [Seller] requested from the Defendant [Buyer] the payment of two invoices related to a contract for the sale of quartz.

[Buyer] stated that the [Seller] failed to comply with its central obligation to deliver the goods as agreed in the contract, and then refused to pay the invoices.

ON THE ABOVE

The Court of First Instance dismissed [Seller]'s claim.

[Seller] appealed the decision, alleging that the Court of First Instance had disregarded the United Nations Convention on International Sales of Goods (CISG) on cut-off periods, having applied exclusively to the case at hand the national case law concerning the aliud pro alio doctrine.

[Seller] alleged that the [Buyer] had lost its right to rely on the lack of conformity of the goods since it had failed to give notice thereof within the two-year cut-off period from the date of the delivery of the goods, as set forth in Art. 39(2) CISG.

The Appellate Court confirmed the Court's a quo decision, for the following reason:

The Appellate Court of Girona confirmed the Court of First Instance decision.

ON THIS GROUND

The Court confirms the judgment of the Lower Court exempting the [Buyer] from paying the amount related to the invoices, and compels the [Seller] to pay the court expenses.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff is referred to as [Seller]; Defendant is referred to as [Buyer].

** 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 Translation Programme participant. Moser is the Brazilian correspondent in the Global Sales Law Project.

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Pace Law School Institute of International Commercial Law - Last updated October 10, 2008
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