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CISG CASE PRESENTATION

Slovak Republic 1 February 2007 Regional Court in Bratislava (E.W.G. v. Ing R.K.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070201k1.html]

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

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Case identification

DATE OF DECISION: 20070201 (1 February 2007)

JURISDICTION: Slovak Republic

TRIBUNAL: Regional Court in Bratislava

JUDGE(S): JU Dr. Helena Kosorinova

CASE NUMBER/DOCKET NUMBER: 46 Cb/25/2000

CASE NAME: E.W.G. v. Ing. R.K.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: [-]


Classification of issues present

APPLICATION OF CISG: Yes.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 5 ; 53 ; 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 (Slovak): Click here for Slovak text of case

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

Regional Court in Bratislava

1 February 2007 [46 Cb/25/2000]

Translation [*] by Juraj Kotrusz [**]

JUDGMENT
IN THE NAME OF THE SLOVAK REPUBLIC

The Regional Court in Bratislava, deciding by a single judge JUDr. Helena Kosorinova, in case of Plaintiff E.W.G. [Seller], with its registered office in K - G., Federal Republic of Germany, represented by JUDr. D.S., attorney, versus Defendant Ing. R. K. [Buyer], with its registered office in B., [Slovak Republic], represented by Mrs. J.K. - court secretary of the Regional Court in Bratislava, regarding payment of 5,967.- Euro [EUR] (formerly 11,540.70 German Mark [DM]) and appurtenances

h a s   d e c i d e d   a s   f o l l o w s:

The [Buyer] is obliged to pay to the [Seller] the sum of 5,967.- EUR and interest of 19% annually:

On the sum of 1,406.62 EUR for the period from 2 August 1997 until payment;
On the sum of 210.68 EUR for the period from 1 October 1997 until payment;
On the sum of 2,282.92 EUR for the period from 1 October 1997 until payment;
On the sum of 2,003.- EUR for the period from 29 October 1997 until payment.

The court dismisses the [Buyer]'s counterclaim.

The [Buyer] is obliged to pay to the [Seller] the sum of 40,688.- EUR as a reimbursement of costs of the proceedings.

REASONING

The [Seller] claimed in the proceedings by its action filed with the court on 3 May 1996 its right to payment of 11,540.- DM (later 5,900.67 EUR) with interest of 19% annually from the first day after due date of invoices until payment, as a purchase price for delivered goods specified in four invoices:

- invoice no. 9013886 of 14 July 1997 for 2,745.254 DM due on 1 August 1997,
- invoice no. 9106320 of 17 July 1997 for 412.05 DM due on 30 September 1997,
- invoice no. 9106321 of 2 July 1997 for 4,465.10 DM due on 30 September 1997,
- invoice no. 9108146 of 2 July 1997 for 3,918.30 DM due on 28 October 1997.

On 21 September 1999, the court issued an Order to pay rec. no. 79 ROB 475/99 which was subsequently cancelled by its resolution of 1 February 2000, which came into force on 25 February 2000.

The [Buyer] expressed its opinion to the claim by its written motion of 24 May 2000 and asked the court to dismiss the action. The [Buyer] argued that:

   -    The delivery of the goods - packing, was performed by several deliveries, where all the goods delivered were defective or incomplete and the [Seller] approved this fact.
 
   -    The parties started negotiations about a discount from the purchase price. The [Seller] was not able to remedy the lack of conformity of the goods and therefore no conclusion was made in the negotiations.
 
   -    The incompleteness of the delivery was remedied by corporation V.O.-U. and the [Buyer] had to bear the costs of this remedy, as it was invoiced in amount of 41,557.50 Slovak koruna [Sk].
 
   -    Since the [Seller] did not remedy the lack of conformity of the goods despite [Buyer]'s call, the [Buyer] considered [Seller]'s claims for interest and reimbursement of the costs of the proceedings as unjustified.

The [Buyer] asked for supplementing the evidence by purchase order. The [Buyer] asserted a counterclaim in amount of 41,557.50 Sk.

The court proceedings on 1 February 2007 were held in absence of the [Buyer] and the [Seller] with reference to sec. 101 part 2 of the Slovak Civil Proceedings Code (hereinafter referred to as "CPC"). The court examined gathered evidence by reading documents submitted by the parties to the dispute.

With reference to the evidence gathered, the court found the [Seller]'s claim to be justified in its entirety.

There was no dispute between the parties about the fact that the [Seller] delivered the goods to the [Buyer] and none of the parties opposed to the amount of the purchase price. Nevertheless, the [Buyer] argued that the goods were defective and incomplete and it therefore claimed its right to discount from the purchase price or right to reimbursement of the costs of removing the incompleteness of the delivery by its counterclaim amounting to 41,557.50 Sk, as it is specified in invoice no. 980240 drawn by corporation V.O.-U. on 7 September 1998, due on 14 September 1998. The [Buyer] did not provide any evidence of notifying the [Seller] of the lack of conformity of the goods. The business licence of the [Buyer] was cancelled on 28 December 1998.

Under sec. 2 of act no. 97/1963 Coll. on international private and procedural law as amended, the provisions of this act can only be used, unless a particular international convention ratified by the Czechoslovak Republic or an act created to implement such convention, stipulates otherwise.

Such international convention in this case is the UN Convention on Contracts for the International Sale of Goods published in Collection of Acts as no. 160/1991 Coll.

   -    Under article 4 of this Convention, this Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract.
 
   -    Under article 53 of the Convention, the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.
 
   -    Under article 78 of the Convention, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.

The court found to be proved, with reference to assenting statements of the parties, that the [Seller] delivered the goods to the [Buyer], as they are specified in the invoices drawn by the [Seller]. Thereby a contract of sale was concluded between the parties at the moment of accepting of the [Buyer]'s offer by the [Seller] in form of dispatching the goods. The delivery was not opposed by the [Buyer] and the [Buyer] also affirmed this fact by asserting its counterclaim on basis of reimbursement of expenses used by the [Buyer] to remedy the lack of conformity and incompleteness of the goods delivered.

The [Buyer] neither did present any evidence that it noticed lack of conformity of the goods delivered to the [Seller] in the prescribed period of time and with specification of defects, nor did the [Buyer] specify the lack of conformity of the goods in the course of the court proceedings. The [Buyer] possesses the burden of proof with regards to this information. The [Buyer] failed to bear the burden of proof.

The court therefore concluded that subsequent to the delivery of the goods, the [Seller] is entitled to payment of the purchase price invoiced by the abovementioned invoices and to payment of interest of 19% annually, as this interest rate was deemed by the court to be standard with regards to interest rates of bank credits provided by banks in place of business of the debtor at the time of concluding of the contract. Right to interest was granted from the due invoiced sums from the first day of default - the day after the maturity date of the invoices until payment, as it was asserted in the action.

The court dismissed the counterclaim of the [Buyer], since the claim was not proved as justified. The [Buyer] proved no connection between the incompleteness of the delivery provided by the [Seller] and the expenses emerging from invoice drawn by corporation U. and furthermore this invoice refers to the delivery of packing made-to-measure without any further specification. This delivery was made more than a year after the deliveries of the [Seller]. Therefore, the subject-matter connection and time connection lacked in this case.

The court decided about the reimbursement of the costs of judicial proceedings under sec. 142 part 1 CPC and granted a full reimbursement of the costs to the [Seller], since it was successful in asserting its claim in its entirety. The reimbursement of costs of judicial proceedings was granted in sum 40,688.- Sk, consisting of the court fee amounting to 12,267.- Sk and costs for legal aid of attorney.

Instruction: An appeal against this judgment must be filed via the Regional Court in Bratislava within fifteen days of its receipt.

Regional Court in Bratislava, 1 February 2007

JUDr. Helena Kosorinova, Judge


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Federal Republic of Germany is referred to as [Seller] and Defendant of the Slovak Republic is referred to as [Buyer]. Amounts in the currency of the Germany (German mark) are indicated as [DM]; amounts in currency of the European Union (EURO) are indicated as [EUR]; amounts in currency of the Slovak Republic (Slovak koruna) are indicated as [Sk].

** Juraj Kotrusz is a Slovak lawyer studied law at the University of Trnava, Slovakia and at the Hague Academy of International Law.

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Pace Law School Institute of International Commercial Law - Last updated December 5, 2008
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