CISG CASE PRESENTATION

Spain 19 December 2007 Appellate Court Pontevedra (Frozen and cooked seafood case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/071219s4.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: 20071219 (19 December 2007)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial de Pontevedra, sección 1ª

JUDGE(S): Don Francisco Javier Menéndez Estebanez

CASE NUMBER/DOCKET NUMBER: Recurso No. 681/2007

CASE NAME: Kingfisher Seafoods Limited v. Comercial Eloy Rocio Mar SL

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 1 de Cambados 7 May 2007 [modified]

SELLER'S COUNTRY: Possibly EEUU (plaintiff)

BUYER'S COUNTRY: Spain (defendant)

GOODS INVOLVED: Frozen and cooked seafood

Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 38 ; 39 [Also cited: Article 7(2) ]

Classification of issues using UNCITRAL classification code numbers:

38A [Buyer's obligation to examine goods: time for examining goods];

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]

Descriptors: Examination of goods ; Lack of conformity notice, timeliness

Editorial remarks

• Unavailable

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.uc3m.es/cisg/respan70.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://turan.uc3m.es/cisg/sespan70.htm>; see also Fuente: Aranzadi Westlaw JUR 2008\81370

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

Queen Mary Case Translation Programme

FACTS OF THE CASE

Plaintiff [Seller] requested from the Defendant [Buyer] the payment of many invoices related to a contract for the sale of frozen and cooked seafood.

ON THE ABOVE

The Court of First Instance rendered a decision partially favorable to the [Seller], compelling [Buyer] to pay the amount of € 108,238,58 as well as the court expenses as a result of the non-payment of some invoices. Both [Seller] and [Buyer] appealed the decision.

[Seller] alleged in its appeal that the decision of the Court of First Instance a quo did not cover all the invoices related to the contract for sale of goods concluded with [Buyer] and argued that the [Buyer] failed to give notice of the lack of conformity of the goods related to those unpaid invoices within a reasonable time.

[Buyer] alleged in its appeal the lack of standing to be sued, and requested from the [Seller] the non-payment of those invoices referred to in the decision of the Court of First Instance.

The Appellate Court applied the United Nations Convention on International Sales of Goods (CISG) and decided that only questions not covered by this Convention should be governed by the rules of private international law (art. 7(2) CISG).

Concerning the merits of the case, the Appellate Court stated that [Buyer]'s notice of lack of conformity had not been sent within the limits set forth in Arts. 38 and 39 CISG. And the Court held that the [Buyer] had failed to examine the goods within a reasonable time thereafter (Arts. 38(1), 39(1) CISG). The Court emphasized that one month or more is too long a time period for examining frozen and cooked seafood since perishable goods can deteriorate quickly in the absence of suitable conditions.

In such a case, the examination has to be immediately on delivery or on the very next days and that the notice has to be given shortly thereafter. The Court considers that there are two essential obligations for the [Buyer]: the examination of the goods and the notice of lack of conformity. In order to fulfill these obligations, the Court stated that those perishable goods, even though frozen or cooked, were destined for human consumption and, consequently, a greater diligence should be adopted thereof. In particular, the Court found that a period of more than a few weeks after delivery was not reasonable taking into account the fact that the defects were easily recognizable.

The Pontevedra Appellate Court granted [Seller]'s appeal for the following reasons:

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

2. As the [Buyer] failed to prove that it has given notice within this time frame, the Court held that it had lost the right to rely on any non-conformity (Art. 39(1) CISG).

3. Finally, the Appellate Court stated that the perishable goods, even though frozen or cooked, were destined for human consumption and, consequently, required a greater diligence, a duty that the [Buyer] failed to perform.

The Appellate Court of Pontevedra reversed the 1st instance decision.

ON THIS GROUND

The Court reverses the judgment of the lower Court and compels the [Buyer] to pay the amount of € 129,822, plus the legal interest on this amount from the date of the filing of the appeal, as well as the court expenses.

[...]

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff is referred to as [Seller]; Defendant is referred to as [Buyer]. Amounts in European currency (Euros) 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 and Queen Mary Case Translation Programme participant. Moser is the Brazilian correspondent in the Global Sales Law Project.