Argentina 31 May 2007 National Commercial Court of Appeals, Division "A" (Sr. Carlos Manuel del Corazón de Jesús Bravo Barros v. Salvador Martínez Gares) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070531a1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Expte. No. 87484, Registro de Cámera No. 102.876/2002
CASE HISTORY: 1st instance Commercial Court of Buenos Aires [affirmed]
SELLER'S COUNTRY: Chile (plaintiff)
BUYER'S COUNTRY: Argentina (defendant)
GOODS INVOLVED: Almonds
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:
7C [Interpretation of Convention: gap-filling]; 38A [Buyer's obligation to examine goods: time for examining goods]; 39A[Requirement to notify seller of lack of conformity]; 54A[Buyer's obligation to pay price: includes enabling steps]
7C [Interpretation of Convention: gap-filling];
38A [Buyer's obligation to examine goods: time for examining goods];
39A[Requirement to notify seller of lack of conformity];
54A[Buyer's obligation to pay price: includes enabling steps]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1197&step=Abstract>
Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/rargen16.htm>
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/sargen16.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1197&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
31 May 2007
Translation [*] by Luiz Gustavo Meira Moser [**]
FACTS OF THE CASE
[Seller], resident in Chile, requested from the [Buyer], resident in Argentina, the amount of US $25,704 or the value resulting from the evaluation of the goods related to the contract performed between the parties.
[Seller] reported that, on 25 of August 1999, he sold to [Buyer] 2,000 kg of pealed full-sized almonds, in a 12/14 diameter, for the total price of US $7,140. [Seller] confirmed that the goods were sent on 20 of September 1999 through a carrier, without any [Buyer]'s goods specifications. However, [Buyer] failed to comply with his obligation to pay the agreed price.
[Buyer] recognized having contracted with [Seller] for the amount of 2,000 kg of almonds, nevertheless he emphasized that the agreed almonds diameter was of 14/15 and not of 12/14 as delivered by the [Seller].
[Buyer] stated that the [Seller] failed to comply with his central obligation to deliver the goods as agreed in the contract, and then refused to pay the invoice. Moreover, [Buyer] alleged the fundamental breach of the contract.
ON THE ABOVE
The Commercial Court of First Instance compelled [Buyer] to pay the amount of US $7,140 or its equivalent in pesos. The decision applied the United Nations Convention on International Sales of Goods (CISG), stating that this Convention contains precise rules concerning the delivery of goods and the rights of the seller regarding the quantity and quality of goods, however, there are no rules -- nor are there general principles -- regarding the procedure to be taken in order to examine the quality of the goods.
Therefore, the Court a quo decided that the matter of examination of the goods should be governed by the rules of private international law (art. 7(2) CISG) and it would eventually lead to the application of the Argentinean law, since this was the place of delivery of the goods. Consequently, in accordance with the Argentinean Commercial Code, since the goods were effectively delivered -- and the [Buyer] did not hand back the goods, instead the [Buyer resold the almonds and did not communicate any lack of conformity to the [Seller] within a reasonable time -- the contract was duly performed.
[Buyer] appealed the decision, reinforcing the reasons previously stated, especially the absence of proof that the goods did fit for the particular purpose agreed before.
The National Commercial Appellate Court rejected the [Buyer]'s appeal for the following reasons:
The National Commercial Appellate Court of Argentina sustained the decision of the Court of First Instance.
ON THIS GROUND
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee of Chile is referred to as [Seller]; Defendant-Appellant of Argentina is referred to as [Buyer]. Amounts in the currency of Argentina are indicated as [pesos]. Amounts in the currency of United States are indicated as [ $ ]
** Luiz Gustavo Meira Moser is a member of the Brazilian Arbitration Committee, YIAG, Association Suisse d'Arbitrage (ASA), ICDR, International Law Association - Brazilian Committee. Moser is the Brazilian correspondent in the Global Sales Law Project.Go to Case Table of Contents