Russia 23 October 2007 Judicial Division of the Supreme Arbitration Court of the Russian Federation, Moscow
[Cite as: http://cisgw3.law.pace.edu/cases/071023r1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 8127/05
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Croatia
BUYER'S COUNTRY: Russia
GOODS INVOLVED: [-]
RUSSIAN FEDERATION: Judicial Division of the Supreme Arbitration Court of the Russian Federation, Moscow
[No. 8127/05] 23 October 2007
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/145],
CLOUT abstract no. 1370
Reproduced with permission of UNCITRAL
A Croatian company (the seller) filed a claim against a Russian buyer to recover money for goods delivered, with interest. The court of first instance allowed the claim in part. The courts of second and third instance upheld the decision.
The Supreme Arbitration Court of the Russian Federation rejected the buyer's request for a review of the courts' rulings, on the following grounds.
In considering the claims, the courts had proceeded on the basis of the provisions of article 1211 of the Russian Civil Code, according to which the law of the seller's country -- in this case, Croatia -- applied to the parties' legal relations. However, as the contracts of the parties fell within the scope of the CISG, the provisions of
Croatian law were subject to the principle of subsidiarity, that is, they applied only to matters not covered by the Convention.
In a separate agreement, the parties had defined the procedure for repayment of the buyer's debt, which provided that the agreement was valid only if the buyer paid the seller a given amount. Otherwise, the agreement would be null and void and the other terms and conditions specified in the original contract would begin to take effect. The buyer had then transferred funds to the seller, but not in the full amount provided for under the separate agreement. At the same time, it had transferred promissory notes to the seller in writing. The seller had not disputed the fact of the transfer of promissory notes or the validity of these securities.
Article 18 CISG provides for the possibility of amending a contract by means of a written proposal by one of the parties and its implementation by the other.
Assessing the behaviour of each of the parties in the performance of their agreements, it could be concluded that, with the evidence of the transfer and acceptance of the promissory notes, formalized with a written document, the buyer had lawfully paid the remaining debt. In view of this, the parties should be considered to have discarded in their separate agreement the provision that, if the buyer failed to pay a given sum to the seller, the agreement would be null and void and that the other terms and conditions specified in the original contract would begin to take effect.Go to Case Table of Contents
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO OTHER ABSTRACTS OF DECISION
CITATIONS TO TEXT OF DECISION
Original language (Russian): online database of court judgements <http://kad.arbitr.ru>
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents