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CISG CASE PRESENTATION

Slovak Republic 17 September 2007 Regional Court in Nitra (Round wafer case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070917k1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20070917 (17 September 2007)

JURISDICTION: Slovak Republic

TRIBUNAL: Regional Court in Nitra

JUDGE(S): Mgr. Pavol Kovac

CASE NUMBER/DOCKET NUMBER: 16 Cbm/30/2004

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: Round wafers


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 74 [Also cited: Articles 18 ; 23 ]

Classification of issues using UNCITRAL classification code numbers:

74A [General rules for measuring damages: loss suffered as consequence of breach]

Descriptors: Damages

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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 Nitra

17 September 2007 [16 Cbm/30/2004]

Translation [*] by Juraj Kotrusz [**]

RESOLUTION

The Regional Court in Nitra, deciding by a single judge Mgr. Pavol Kovac, in the case of Plaintiff S.W., GmbH [Seller], with its registered office in M. ___, [Federal Republic of Germany] represented by attorney JUDr. J.H. versus Defendant Ch. P., s.r.o. [Buyer], with its place of business in N. ___ [Slovak Republic] ... represented by attorney JUDr. M.K., regarding payment of 6,673.21 Euro [EUR] with 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 5,088.82 EUR with interest of 16.75 % annually for the period from 12 March 2003 until payment and reimbursement of costs of the proceedings amounting to 46,640.- Sk within three days after the judgment comes into force.

The court stays the proceedings with respect to the residual part of the action in sum of 1,584.39 EUR.

REASONING

The [Seller] claimed by the action of 2 July 2004 its right to payment of 6,673.21 EUR with interest as damages emerging from the contract of sale. The [Seller] justified its claim by stating that the [Buyer] ordered from the [Seller] the delivery of 700,000 round wafers as soon as possible where the written order was made by telefax on 28 February 2003. On the same day, the [Seller] issued a pro forma invoice for the abovementioned sum and sent it to the [Buyer] with enclosed acceptance of the order, where the [Seller] mentioned the date of delivery of the goods -- 11 March 2003 -- and asked the [Buyer] to pay the purchase price in advance. The [Seller] arranged for the delivery of the goods on 11 March 2003 but the [Buyer] failed to pay the pro forma invoice of 28 February 2003 and also the invoice of 10 March 2003 and also failed to accept delivery of the goods.

The Court determined from the evidence gathered that the Court had already ruled on the claim of the [Seller] in its judgment of 23 November 2004 and upheld the action in its entirety and bound the [Buyer] to pay to the [Seller] reimbursement of costs of the proceedings.

Upon appeal of the [Buyer], the Appellate Court cancelled the judgment of the Court of first Instance by its resolution of 26 May 2004 and returned the case to the lower court for further proceedings. The Appellate Court stressed in its decision that the Lower Court correctly determined that the parties to the proceedings concluded a contract of sale in accordance with articles 18 to 23 of the CISG and the parties to the proceedings did not oppose the fact that the goods ordered were not handed over by the [Buyer] and the goods were not placed at its disposal. The Lower Court also correctly determined that because of the conduct of the [Buyer], the [Seller] suffered loss and its claim for damages under article 74 of the Convention was justified. However, the amount of the loss suffered was not proved, as it was investigated that the goods were not fabricated by the [Seller] but only bought for resale.

The [Seller] partially withdrew its action with respect to the sum of 1,584.39 EUR by its motion from 13 June 2006 and insisted on its action with respect to the sum of 5,088.82 EUR with appurtenances. The [Seller] justified its partial withdrawal of the action by stating that the goods intended to be delivered to the [Buyer] were purchased from corporation O. B. W. GmbH, with its registered office in B.W., Federal Republic of Germany and this corporation issued invoice no. 20030663 on 10 March 2003 for the sum of 5,088.82 EUR as the purchase price for the goods delivered to the [Seller]. If the [Seller] did not pay this price, it would have to pay the sum of 5,192.67 EUR instead. Therefore the [Seller] paid the invoice for the sum of 5,088.82 EUR on 24 March 2003.

The Court gathered evidence by reading the submitted documents and decided about the partial staying of the proceedings with respect to partial withdrawal of the action.

The [Buyer] stated at the hearing held on 2 July 2007 that it recognizes the claim of the [Seller] with respect to its grounds but not with respect to its amount. The Court therefore granted to the parties a period of time for negotiations about the amount of damages. However the parties did not reach settlement about the claimed sum.

With respect to the abovementioned, the Court found that the claimed sum of 5,088.82 EUR corresponds to the sum that was paid by the [Seller] to its supplier for delivery of the goods intended for sale to the [Buyer]. The Court therefore granted to the [Seller] the damages in the claimed amount and also interest of 16.75 % annually on this sum for the period from 12 March 2003 (the day after the agreed date of delivery of the goods) until payment under sec. 369 part 1 of the Slovak Commercial Code.

The court decided about the reimbursement of costs of the proceedings under sec. 142 part 2 of the Slovak Civil Procedure Code.

Instruction: An appeal against this judgment can be filed via this court within 15 days after receipt.

Regional Court in Nitra, 17 September 2007

Mgr. Pavel Lukac
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 Slovak Republic (Slovak koruna) are indicated as [Sk]; amounts in currency of the European Union (Euro) are indicated as [EUR].

** 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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Pace Law School Institute of International Commercial Law - Last updated July 14, 2009
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