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CISG CASE PRESENTATION

Spain 8 February 2007 Appellate Court Pontevedra (Heating valve case)
[Cite as: http://cisgw3.law.pace.edu/cases/070208s4.html]

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

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Case identification

DATE OF DECISION: 20070208 (8 February 2007)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial de Pontevedra, sección 1ª

JUDGE(S): Don Francisco Javier Menéndez Estebanez

CASE NUMBER/DOCKET NUMBER: Recurso No. 683/2006

CASE NAME: Unavailable

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 1 de Porriño 7 June 2006

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Spain (defendant)

GOODS INVOLVED: Heating valves


Case abstract

SPAIN: Audiencia Provincial de Pontevedra 8 February 2007 (Heating valves case)

Case law on UNCITRAL texts (CLOUT) abstract no. 799

Reproduced with permission of UNCITRAL

Abstract prepared by Maria del Pilar Perales Viscasillas, National Correspondent

The Spanish buyer was sued by the Italian seller for non-payment of the price of the sales contract concluded between them. The buyer claimed that the machine supplied was unusable (machinery damaged and unmaintained). The expert appraisals were carried out two and three years respectively after delivery, when the merchandise was no longer in the hands of the buyer, which had sold it to a third party. The court of second instance found that in such circumstances it was difficult to determine accurately what had been the state of the machinery at the time of conclusion and consummation of the sales contract, while indeed there was evidence to indicate that the machinery had been in good condition at the time of delivery: the buyer had not questioned the satisfactory state of the machinery until a year after delivery and the new buyer had paid the price and not complained about the condition of the machinery.

With regard to the complaint from the Spanish buyer, the court considered that what could be regarded as a reasonable period of time under CISG article 39(1) had expired, and that the buyer had therefore lost the right to plead a lack of conformity. Regarding the interpretation to be given to the two paragraphs of CISG article 39, the court found that "the logical and consistent interpretation is that the maximum period of two years applies when the reasonable period of time referred to in the first paragraph is not shorter".

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 39

Classification of issues using UNCITRAL classification code numbers:

39A2 ; 39B [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Cut-off period of two years]

Descriptors: Lack of conformity notice, timeliness

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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/respan59.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan59.htm>; see also Fuente: Aranzadi Westlaw JUR 2007\88277

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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