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CISG CASE PRESENTATION

Greece 2008 Decision 16319/2007 of the Single-Member Court of First Instance of Thessalonica (Tomatoes and lemons case) [editorial analysis available]
[Cite as: http://cisgw3.law.pace.edu/cases/080001gr.html]

Primary source(s) of information for case presentation: Commentary by Dionysios P. Flambouras

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Case identification

DATE OF DECISION: 20080000 (2008)

JURISDICTION: Greece

TRIBUNAL: Monomeles Protodikio Thessalonikis [Single Member Court of First Instance of Thesssalonica]

JUDGE(S): S. Spiridonidou (Judge of the Court of First Instance) (Protodikis)

CASE NUMBER/DOCKET NUMBER: 16319/2007

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (defendant)

BUYER'S COUNTRY: Greece (plaintiff)

GOODS INVOLVED: Tomatoes and lemons


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 4 [also relationship of CISG with INCOTERMS] [Also cited: Articles 6 ; 18 ; 23 ; 31 ; 57 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): determination of place of conclusion of contract]

Descriptors: Scope of Convention ; Jurisdiction

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Editorial remarks

EDITOR: Dionysios P. Flambouras [*]

1. FACTS

The Seller agreed to sell to the Buyer 12 tons of tomatoes and 7.5 tons of lemons of Italian origin for 13,622. Thessaloniki (Greece) was agreed to be the place of delivery. The Buyer paid the purchase price. Upon delivery, the Buyer discovered that goods were defective and returned them to the Seller. Due to the defect, the Buyer was not able to resell the goods to Greek merchants for an aggregate amount of 20,500. The Buyer asked the court to order return by the Seller of the purchase price and payment by the Seller of the amount of 6,878 as loss of profit. The Seller raised an objection for lack of international jurisdiction of the Greek court.

2. RULING

2.1 Application of the CISG

The court does not expressly mention whether the CISG is applied by virtue of art. 1(1)(a) or 1(1)(b). It is suggested that the CISG is applicable under both provisions.

2.2 Other legal issues

Referring to various provisions of the CISG, the court summarized the law as follows:

      In contracts governed by the CISG and in the absence of an agreement to the opposite (CISG art. 6), the place of performance of the Seller's obligation is determined by virtue of CISG articles 31 and 57 [which supersede art. 320 of the Greek Civil Code]. Accordingly, the international trade terms known as INCOTERMS (such as cif, fob, free carrier, free truck, free on rail etc) constitute criteria (as business practices) for the interpretation of the parties' will and apply when the parties have expressly incorporated them in the contract of sale. When the contract of sale involves carriage of goods, the critical location is the place of delivery of the goods to the first carrier or when the sale relates to future goods or goods to be manufactured the place of performance of the Seller's obligation is determined accordingly (CISG article 31 paragraph (a) and (b)). Therefore, the place of performance of the Seller's obligation is determined with reference to the parties' contractual intent (lex volontatis) and if no such intent can be inferred, then CISG art. 31 applies.

      With respect to time of conclusion of the contract, the CISG adopts the theory of receipt (CISG articles 18 and 23). However, the CISG does not include any provision in connection with the place of conclusion of the contract and therefore this matter is governed by the domestic law of the forum. Accordingly, art. 192 of the Greece Civil Code governs the place of conclusion of the contract [the contract is concluded at the place where the offeror receives acceptance of its offer.

2.3 Jurisdictional matters and relation with CISG

The court applied art. 5 1 item (a) and (b) of Regulation (EC) 44/2001 of the European Council dated 22 December 2000 on International Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Cases. Pursuant to these provisions and with Greece being the forum, as to disputes arising from a contract, a person residing [or an entity having its registered seat] in an EU member-state may be sued in another EU member-state before the court of the place where the obligation in question was or must be performed; in particular in connection with the sale of goods, the place of performance of the obligation in question is the place where the delivery of goods was performed or should have been performed. Therefore, if the place where the seller is obliged to deliver the goods is not in Greece and the defendant is not residing [or, if an entity, does not have its registered seat] in Greece, then Greek courts do not have international jurisdiction to hear an action concerning a dispute under the contract governed by the CISG.

In the absence of a contractual agreement to the contrary, the court found that, pursuant to CISG art. 31, the Seller has to deliver the goods at its place of business (i.e., the city of Vitoria in Italy) [see also above paragraph 2.2]. Therefore, from the joint application of: (i) art. 5 1 item (a) and (b) of the Regulation (EC) 44/2001 of the European Council dated 22 December, 2000; (ii) articles 3 and 33 of the Greek Code of Civil Procedure; and (iii) CISG art. 31, the court found that it did not have international jurisdiction to hear the action [on the opposite, Italian courts had international jurisdiction].

2.4 Other citations

Excerpt from commentary by Dionysios P. Flambouras "Case Law of Greek Courts for the Vienna Convention (1980) for International Sale of Goods" (publication forthcoming in the Nordic Journal of Commercial Law).


FOOTNOTES

* Adjunct Lecturer (PD 407) in Civil Law, University of Athens (Dep. of Economics); Advocate of the Athens Bar, Solicitor in England & Wales; Member of M. & P. Bernitsas Law Offices. LL.M. (Brist.), M. Stud. (Oxon), Dr. Jur. in Civil Law (Athens).

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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 (Greek): Click here for Greek text; see also Chronicles of Private Law [Hronika Idiotikou Dikeou] (2008) 146 (with commentary of P.S.G.)

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated November 16, 2009
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