Greece 2007 Decision 2923/2006 of the Court of Appeals of Thessalonika (Textiles case) [editorial analysis available]
[Cite as: http://cisgw3.law.pace.edu/cases/070001gr.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 2923/2006
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (defendant)
BUYER'S COUNTRY: Greece (plaintiff)
GOODS INVOLVED: Textiles
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
EDITOR: Dionysios P. Flambouras [*]
The Seller, an enterprise producing textiles having its seat in Germany, agreed to sell textiles to the Buyer, an enterprise of Greece producing men clothing and accessories. The Seller undertook to dispatch the textiles to the Buyer by April 2000 in order for the Buyer to be able to supply products to its customers in the Greek market for the period 2000-2001. The Seller did not supply to the Buyer the agreed textiles in a timely fashion and the Buyer was not able to deliver products to its customers. As a result, it lost the amount of €15,371.59 (a profit expected to have acquired from selling the products under the usual circumstances). The Buyer also suffered mental distress and requested the amount of €10,000 as non-monetary damages. The Buyer claimed from the court the amount of €25,371.59.
2.1 Application of the CISG
The court does not expressly mention whether the CISG is applied by virtue of art. 1(1)(a) or 1(1)(b). It is suggested that the CISG is applicable under both provisions.
2.2 Other legal issues
Referring to various provisions of the CISG, the court summarized the law as follows:
|-||Under CISG art. 3(1), contracts for the supply of goods to be manufactured or produced are to
be considered sales unless the party who orders the goods undertakes to supply a substantial part
of the materials necessary for such manufacture or production.
|-||Under CISG art. 7(2), questions concerning matters governed by this Convention which are not
expressly settled in it are to be settled in conformity with the general principles on which it is based
or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of
private international law.
|-||Under CISG art. 45, if the seller fails to perform any of his obligations under the contract or the
CISG, the buyer may: (a) exercise the rights provided in articles 46 to 52; (b) claim damages as
provided in articles 74 to 77.
|-||Under CISG art. 74, damages for breach of contract by one party consist of a sum equal to the
loss, including loss of profit, suffered by the other party as a consequence of the breach. Such
damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at
the time of the conclusion of the contract, in the light of the facts and matters of which he then knew
or ought to have known, as a possible consequence of the breach of contract.
|-||Under CISG art. 81, avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due.|
Then, strangely, the court referred to art. 516 of the Greek Civil Code which provides that "If the seller does not perform its obligations [i.e., contractual or legal], the buyer is entitled to the remedies that an obligee is entitled in bilateral contracts and in particular in the event of late performance or inability due to fault of the obligor" and stated that if the seller's non-performance or inappropriate performance result from illegal and intentional (or negligent) act of the seller, then the buyer may claim damages under art. 914 of the Greek Civil Code (liability in tort/non-contractual liability for damages). It is submitted that since the CISG was applicable, art. 516 of the Greek Civil Code did not apply.
2.3 Claim was not accepted on procedural grounds
The court rejected the Buyer's claim as non-specified (vague) (aoristi) since the Buyer had not specified in its action in detail: (a) the textiles that constituted the subject of the contract of sale; and (b) its customers to whom the Buyer had agreed to further sell the products. Since the action was non-specified (vague) it was not, under the Greek Code of Civil Procedure, eligible for judicial review.
2.4 Other citations
Excerpt from commentary by Dionysios P. Flambouras "Case Law of Greek Courts for the Vienna Convention (1980) for International Sale of Goods" (publication forthcoming in the Nordic Journal of Commercial Law).
* Adjunct Lecturer (PD 407) in Civil Law, University of Athens (Dep. of Economics); Advocate of the Athens Bar, Solicitor in England & Wales; Member of M. & P. Bernitsas Law Offices. LL.M. (Brist.), M. Stud. (Oxon), Dr. Jur. in Civil Law (Athens). For comments: <email@example.com>Go to Case Table of Contents
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Greek): Click here for Greek text; see also Commercial Law Survey (Episkopissi Emporikou Dikeou) 2007, 168 (with introductory note by Ach. Behlivanis on p. 170)
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents