CISG CASE PRESENTATION

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]

Case Table of Contents

• Case identification
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)

• Guide to links contained in case presentations

Case identification

DATE OF DECISION: 20070531 (31 May 2007)

JURISDICTION: Argentina

TRIBUNAL: National Commercial Court of Appeals, Division "A", Buenos Aires

JUDGE(S): Dra. María Elsa Uzal, Dr. Alfredo Arturo Kölliker Frers, Dra. Isabel Míguez

CASE NUMBER/DOCKET NUMBER: Expte. No. 87484, Registro de Cámera No. 102.876/2002

CASE NAME: Sr. Carlos Manuel del Corazón de Jesús Bravo Barros v. Salvador Martínez Gares

CASE HISTORY: 1st instance Commercial Court of Buenos Aires [affirmed]

SELLER'S COUNTRY: Chile (plaintiff)

BUYER'S COUNTRY: Argentina (defendant)

GOODS INVOLVED: Almonds

Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

CISG provisions cited: Articles 7 ; 38 ; ; 39 ; 54 [Also cited: Articles 34 ; 37 ; 48 ]

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]

Descriptors: Gap-filling ; Examination of goods ; Lack of conformity notice, timeliness ; Currency issues

Editorial remarks

• Unavailable

Citations to case abstracts, texts, and commentaries

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

Unavailable

Queen Mary Case Translation Programme

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:

1. The contractual relationship established between the parties did not demonstrate any agreement of the parties regarding a gap-filling law, i.e., there was no evidence in the files that showed the election of a subsidiary national applicable law to the case at hand;

2. The a quo judgment recognized therefore the application of the CISG, ratified by both Argentina and Chile and considered the application of the rules of private international law for aspects not particularly governed in the CISG;

3. The contract resolution should be applicable only in circumstances when the fundamental breach cannot be avoided by the party responsible for the breach (arts. 34, 37 and 48 CISG);

4. Arts. 38 and 39 of CISG require the [Buyer] to examine the goods and notify the [Seller] of any lack of conformity within a reasonable time, duties that were not performed by the [Buyer];

5. The contract fulfillment, as a rule, must be supported on the principles of good faith and contractual economy, which prevent the parties from incurring procedural costs and expenditures in the contract completion;

6. In respect to the currency of the payment, since Art. 54 CISG is silent on this subject the Court rendered applicable the Chilean law (law of place of performance), according to the rules of private international law. The Court accordingly regarded US dollars as the currency of payment, since it was the currency previously agreed by the parties;

7. The principle of contractual economy plays a central role in the evaluation of the conduct of the parties, because it is a concrete manifestation of the principle of reasonableness presented in the CISG. The 1980 Vienna Convention reinforces, therefore, the principle of favor executionis, i.e., upholding performance of the contract in accordance with the terms previous agreed by the parties.

The National Commercial Appellate Court of Argentina sustained the decision of the Court of First Instance.

ON THIS GROUND

• The Court declares admissible the appeal lodged by [Buyer] against judgment no. 15/29 of the 1st instance Commercial Court in Case No. 102.876/2002.

• The Court confirms the judgment of the lower court and compels the [Buyer] to pay the amount of US $7,140, as well as the court expenses of the appeal.

• […]

FOOTNOTES

* 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.