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CISG CASE PRESENTATION

Slovak Republic 18 June 2007 Regional Court in Zilina (Baked and confectionary goods case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070618k1.html]

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

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Case identification

DATE OF DECISION: 20070618 (18 June 2007)

JURISDICTION: Slovak Republic

TRIBUNAL: Regional Court in Zilina

JUDGE(S): JUDr. Erika Canadyova

CASE NUMBER/DOCKET NUMBER: 15 Cb 219/1998-218

CASE NAME: Unavailable

CASE HISTORY: 2d instance Supreme Court 12 November 2008 [affirming]

SELLER'S COUNTRY: Czech Republic (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: Baked and confectionary goods


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 9 [Also cited: Articles 11 ; 14 ; 23 ; 30 ; 53 ; 55 ]

Classification of issues using UNCITRAL classification code numbers:

9C [Practices established by the parties]

Descriptors: Usages and practices ; Burden of proof

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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)

Queen Mary Case Translation Programme

Regional Court in Zilina

18 June 2007 [15 Cb/219/1998-218]

Translation [*] by Juraj Kotrusz [**]

JUDGMENT
IN THE NAME OF THE SLOVAK REPUBLIC

The Regional Court in Zilina, deciding by a single judge, JUDr. Erika Canadyova, in the case of Plaintiff P., s.r.o. [Seller], with its registered office in K., ___, Czech Republic, represented by JUDr. J.J., attorney, versus Defendant J.B. - B.T., [Buyer], with its place of business in C., ___ Slovak Republic, regarding payment of 48,581.- Czech koruna [Kc] and appurtenances

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

The [Seller]'s action is dismissed.

The [Buyer] does not have right to reimbursement of costs of the proceedings.

REASONING

The Court of First Instance dismissed by the challenged judgment the action of the [Seller] for payment of the sum of 48,581.- Kc and interest of 15 % annually on this sum for the period from 15 July 1994 until payment.

The Court determined from the evidence gathered that the [Seller] claimed in the proceedings its right to payment of purchase price for baked and confectionary goods delivered to the enterprise of the [Buyer], as evidenced by:

   -    Bills of lading no. 337685 of 19 April 1994, no. 337686 of 19 April 1994, no. 337687 of 20 April 1994, no. 337688 of 21 April 1994, no. 337689 of 22 April 1994, no. 337690 of 23 April 1994, which refer to invoice no. 29746;
 
   -    Bills of lading no. 337664 of 2 May 1994, no. 337665 of 3 May 1994, no. 337666 of 4 May 1994, no. 337667 of 5 May 1994, no. 337668 of 6 May 1994, no. 337669 of 7 May 1994 which refer to invoice no. 30825;
 
   -    Bills of lading no. 337658 of 9 May 1994, no. 337659 of 10 May 1994, no. 337660 of 11 May 1994, no. 337661 of 12 May 1994, no. 337662 of 13 May 1994, no. 337663 of 14 May 1994, which refer to invoice no. 31368;
 
   -    Bills of lading no. 337670 of 25 April 1994, no. 337671 of 26 April 1994, no. 337672 of 27 April 1994, no. 337673 of 28 April 1994, no. 337674 of 29 April 1994, no. 337675 of 30 April 1994, no. 032000 of 28 April 1999 which refer to invoice no. 30286;
 
   -    Bills of lading no. 337691 of 11 April 1994, no. 337692 of 12 April 1994, no. 337693 of 13 April 1994, no. 337694 of 14 April 1994, no. 337695 of 15 April 1994, no. 337696 of 16 April 1994, no. 031993 of 14 April 1999 which refer to invoice no. 29198;
 
   -    Bills of lading no. 337697 of 1 April 1994, no. 337698 of 2 April 1994, no. 337699 of 4 April 1994, no. 337700 of 5 April 1994, no. 337701 of 6 April 1994, no. 337702 of 7 April 1994, no. 337703 of 8 April 1994, no. 337704 of 9 April 1994, no. 031979 of 1 April 1994 and no. 031985 of 7 April 1994 which refer to invoice no. 28661;
 
   -    Bills of lading no. 337676 of 21 March 1994, no. 337677 of 22 March 1994, no. 337678 of 23 March 1994, no. 337679 of 24 March 1994, no. 337680 of 25 March 1994, no. 337681 of 26 May 1994, no. 337682 of 29 March 1994, no. 337683 of 30 March 1994, no. 337684 of 31 March 1994, no. 021301 of 24 March 1994 which refer to invoice no. 28113.

The Court investigated these bills of lading which refer to the abovementioned invoices. It was submitted to the Court that these bills of lading do not contain the business seal of the [Buyer] or any signature or other form of confirmation of handing over the goods to the [Buyer] or its representative in the shop D. L.

The Court determined from the evidence gathered that conditions of sale and delivery of the goods -- baked and confectionary goods -- by the [Seller] to the [Buyer] to her enterprise -- a grocery shop in D.L. -- were prescribed in the contract of sale of 8 March 1993 which contained general rules of delivery of goods and payment of price. The parties to the proceedings did not oppose the contract at the time of delivery of the goods. The court has to stress that such conduct cannot be qualified as a contract of sale under the UN Convention on Contracts for the International Sale of Goods published in Collection of Acts as no. 160/1991 Coll., as the object of the contract was not specified with respect to quantity and type of the goods.

Nevertheless, the Court took into consideration the facts, which were not challenged by the parties to the contract, that delivery of the goods to the enterprise of the [Buyer] was performed upon payment and delivery conditions which were included in the abovementioned contract of sale of 8 March 1993. The parties to the proceedings did not oppose the fact that upon the abovementioned payment and delivery conditions the [Seller] used to deliver baked and confectionary goods to the enterprise of the [Buyer] where Mrs. A.K. as a manager of the enterprise acted in the name of the [Buyer] with respect to all matters connected with business including handing over of goods, receiving invoices and managing the enterprise.

The [Buyer] stated that she used to control the enterprise once or twice a week but after her injury, it was not able to perform such controls. The [Buyer] confirmed the established practice that Mrs. K. would order goods for the enterprise in the name of the [Buyer] and decide about the amount and type of goods to be ordered. The [Buyer] stated that she was not present when goods were handing over from the [Seller] and that the purchase price was paid directly from cash in the enterprise and she was not able to state whether any payments of purchase price for delivered baked and confectionary goods were made by a bank transfer.

The witness K. stated at the hearing that until spring 1994 she was employed by the [Buyer] as a manager of the enterprise -- the grocery shop in D.L. She was empowered to order baked and confectionary goods from the [Seller] and such purchase orders were made in written form after adjusting the amount of goods and its type necessary for retail performed in the shop. She stated in the proceedings that the goods from the [Seller] used to be delivered in different parts of day -- in the morning, in the afternoon and it was never in the same day. The goods were checked by employees of the [Buyer], i.e., the manager or shop assistants with respect amount and type and conformity with data in bills of lading. The witness stated that after checking of goods she (or the shop assistant checking the goods) put the company seal on the bill of lading. The witness stressed that all bills had to be sealed and signed and in case of deliveries performed early morning, where the shop was open from 7:00 a.m., the [Seller] placed the goods behind the shop by the ramp and after the manager or shop assistants came in, they checked the goods and approved its conformity by sealing and signing the bills of lading which were delivered to the [Seller] at the time of the next delivery the same day. The witness stated that the "next delivery" was performed almost every day and if no such delivery was performed in a specific day, the [Seller] handed over the bills of lading when returning from other customers.

The witness stated that she did not make transfers from the bank account of the [Buyer] as she did not have access to this account and was giving all cash to the [Buyer]. The witness stated that she never directly paid to the [Seller] for delivered goods, neither in cash nor by a bank transfer. She confirmed that goods were handed over to her and she resold them. The witness stated that she was not keeping evidence of received invoices or accounts and does not recollect receiving any invoices from the [Seller] for the goods delivered. The witness stressed that if she or any of shop assistants checked the goods, they sealed and signed bills of lading where one copy was returned to the driver of the [Seller] and one copy was kept for the [Buyer]. She was not identifying the bills of lading with particular invoices from the [Seller]. If any of the bills was not in conformity with the goods delivered, the missing data were added to the bill of lading and subsequently signed and sealed. The witness stressed that this procedure of handing over the goods was observed also by shop assistants. Employees did not make special evidence of received bills of lading or delivered baked goods, but used to collect them for a certain period of time and then gave them to the [Buyer] who personally visited the shop once a week. After suffering her injury, the [Buyer] did not ever come to the shop. The witness stated that after this injury she also opened her own shop but at that time the shop of the [Buyer] was already liquidated.

The [Seller] submitted the following documents to the Court at the hearing held on 18 June 2007:

   -    Ticket of receipt no. 60053 of 14 May 1994 for the sum of 6,186.- Kc which stated that it proves partial payment of several invoices including partial payment of invoice no. 401064 in amount of 250.- Kc;
 
   -    Ticket of receipt no. 60252 of 2 June 1994 for the sum of 5,683.- Kc which stated that it proves partial payment of several invoices including partial payment of invoice no. 31038 in amount of 246.- Kc.

When investigating these tickets, the Court found that they contain no signature of the [Buyer] and the [Buyer] did not recognize the signatures present on the tickets. With reference to these documents, the Court investigated only partial payment of invoice no. 401064 for the sum of 250.- Kc in cash. The Court was not able to determine which person (the [Buyer] herself or any person acting in her name) paid the sum to the [Seller].

   -    Under article 9(1) of the UN Convention on Contracts for the International Sale of Goods, published as Notice of Federal Ministry of Foreign Affairs no. 160/1991 Coll, the parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.
 
   -    Under article 9(2) of the Convention, the parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.
 
   -    Under article 11 of the Convention, a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.
 
   -    Under article 23 of the Convention, a contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.
 
   -    Under article 30 of the Convention, the seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.
   -    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 55 of the Convention, where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.

The Court applied to the relationship of the parties to the proceedings the UN Convention, as the [Seller] has its place of business in the Czech Republic and the [Buyer] has its place of business in the Slovak Republic where both States are Contracting States to the Convention and the Convention was in force in both of them in 1994.

The Court determined that under the contract of sale of 8 March 1993, rec. no. 9 to 11, the parties have agreed to repeatedly deliver goods, including baked and confectionary goods, by the [Seller] to the [Buyer] and the [Buyer] paid for the goods. With reference to conditions of mutual transactions prescribed in the contract of 8 March 1993, the parties to the proceedings have established a practice regulating delivery of goods to the shop in D. L. The parties did not oppose these facts. However, the [Buyer] opposed the claimed delivery of certain goods listed on the abovementioned invoices. The [Seller] bears the burden of proving that the submitted bills of lading referred to actually delivered goods. The court investigated by interrogation of the witness A.K. that the practice regulating delivery of baked and confectionary goods and payment of price prescribed that the manager of the [Buyer] or its employees always confirmed the handing over the goods by sealing and signing the bills of lading where one copy of the bill was returned to driver of the [Seller] and the other one was kept for the [Buyer]. The bills of lading submitted by the [Seller] to the Court contained no signature or seal of the [Buyer] and the [Seller] did not submit any other evidence proving delivery of the goods.

With respect to the argument that the [Buyer] partially paid invoice no. 401064 in the sum of 250.- Kc, the Court determined such payment from the ticket of receipt no. 60053 of 19 May 1994 that this ticket contains information about partial payment of invoice no. 401064. There was no reason stated why this invoice was paid partially and the ticket was drawn by the [Seller] and no signature of the [Buyer] or its employee was included on the ticket. With respect to the claimed partial payment of invoice no. 31368 in the sum of 246.- Kc, this ticket of receipt contains information about partial payment of an invoice other invoice no. 31038. The [Seller] did not prove in the proceedings that under the contract of sale of 8 March 1993 it delivered the goods as specified in the submitted invoices amounting to 48,581.- Kc and therefore did not bear its burden of proof with respect to the claimed delivery of these goods in accordance with article 30 of the Convention.

With reference to these facts, the Court found that the [Seller] has no claim against the [Buyer] for payment of 48,581.- Kc as asserted in the action. The [Seller] also did not evidence concluding of a tacit contract of sale with respect to the goods specified in the action; the [Seller] presented no evidence about such act and referred only to the written contract of 8 March 1993.

As the [Seller] was not successful in the proceedings, it has no right to reimbursement of costs of the proceedings. Under sec. 142 part 1 CPC, the [Buyer] has the right to reimbursement of costs of the proceedings as it was successful in the proceedings but did not claim reimbursement of her costs and the Court did not grant reimbursement of costs to any of the parties to the proceedings.

Instruction: An appeal against this judgment is not admissible.

Supreme Court of the Slovak Republic, 12 November 2008

JUDr. Beata Minicova
Chairman of the Panel


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Czech Republic is referred to as [Seller] and Defendant of the Slovak Republic is referred to as [Buyer]. Amounts in the currency of the Czech Republic (Czech koruna) are indicated as [Kc].

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

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