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CISG CASE PRESENTATION

Spain 18 October 2007 Appellate Court Madrid (Textiles case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/071018s4.html]

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

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Case identification

DATE OF DECISION: 20071018 (18 October 2007)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial Madrid, sección 11;

JUDGE(S): Don Jesús Gavilán López

CASE NUMBER/DOCKET NUMBER: Recurso de Apelacion No. 96/2007

CASE NAME: Unavailable

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 49 de Madrid 17 November 2005

SELLER'S COUNTRY: India

BUYER'S COUNTRY: Spain

GOODS INVOLVED: Textiles


UNCITRAL case abstract

SPAIN: Madrid Provincial High Court [1] 18 October 2007

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/147],
CLOUT abstract no. 1388

Reproduced with permission of UNCITRAL

Abstract prepared by Marķa del Pilar Perales Viscasillas, National Correspondent

The parties to a contract for the international sale of goods (Spanish buyer, seller potentially from India, since the goods were shipped from that country) disputed the application of a penalty clause laid down in the contract for delay in the delivery of the goods (seasonal textiles). The Court considered the application of articles 48 and 74 CISG.

It was thought that article 48 CISG did not apply as it has a general character in relation to ordinary cases of non-compliance, while the penalty clause was predicated on a unique character, its own autonomy and a specialized focus on certain breaches. The parties had freely determined the sanction which this clause would impose, from (and including) the first day of delay. The Court argued that article 74 CISG was also inapplicable because the penalty clause took the place precisely of compensation, thus representing an exception to the normal system of obligations, restrictively interpreted. The Court moderated the punishment, halving it by applying article 1.108 of the Civil Code.

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 48 ; 74

Classification of issues using UNCITRAL classification code numbers:

Unavailable

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

Spanish: CISG-Spain and Latin America website <http://www.cisgspanish.com/seccion/jurisprudencia/espana/?provincia=Madrid>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.cisgspanish.com/jurisprudencia/espana/audiencia-provincial-madrid-18-octubre-2007/>; see also Fuente: Aranzadi Westlaw

Translation: CISG-Spain and Latin America website <http://www.cisgspanish.com/wp-content/uploads/2013/03/SAPMadrid18.10.2007englishtranslation.pdf>

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated September 4, 2014
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