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CISG CASE PRESENTATION

Slovak Republic 21 January 2008 District Court in Dolny Kubin (G. & B., S.r.o. v. RT.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080121k1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20080121 (21 January 2008)

JURISDICTION: Slovak Republic

TRIBUNAL: District Court in Dolny Kubin

JUDGE(S): JU Dr. Peter Bebej

CASE NUMBER/DOCKET NUMBER: 5 Cb/94/2007

CASE NAME: G. & B., S.r.o. v. R.T.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Czech Republic (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: [-]


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 53 ; 78

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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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

District Court in Dolny Kubin

21 January 2008 [5 Cb/94/2007]

Translation [*] by Juraj Kotrusz [**]

JUDGMENT
IN THE NAME OF THE SLOVAK REPUBLIC

The District Court in Dolny Kubin, deciding by a single judge, JUDr. Peter Bebej, in the case of Plaintiff G. & B. CZ, S.r.o. [Seller], with its registered office in C., K., Czech Republic, represented by attorney JUDr. M.K., versus Defendant R.T. [Buyer], with its place of business in A. S., D. K. [Slovak Republic], regarding payment of 236,547.50 Slovak koruna [Sk] and 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 226,547 EUR and interest of 8.3% annually:

On the sum of 30,952.- Sk for the period from 7 March 2007 until 14 September 2007;
On the sum of 24,495.50 Sk for the period from 15 September 2007 until 21 November 2007;
On the sum of 14,495.50 Sk for the period from 22 November 2007 until payment;
On the sum of 19,709.50 Sk for the period from 19 March 2007 until payment;
On the sum of 18,092.50 Sk for the period from 21 March 2007 until payment;
On the sum of 7,762.- Sk for the period from 24 March 2007 until payment;
On the sum of 33,771.50 Sk for the period from 28 March 2007 until payment;

and interest of 8.06% annually:

On the sum of 29,643.50 Sk for the period from 4 April 2007 until payment;
On the sum of 28,700.- Sk for the period from 18 April 2007 until payment;
On the sum of 20,056.- Sk for the period from 2 May 2007 until payment;

and interest of 8.6% annually:

On the sum of 22,354.- Sk for the period from 9 May 2007 until payment;
On the sum of 17,178.50 Sk for the period from 16 May 2007 until payment;
On the sum of 14,784.50 Sk for the period from 24 May 2007 until payment;

and a sum of 38,388.- Sk as a reimbursement of costs of the proceedings within three days after the judgment comes into force on the account of legal counsel of the [Buyer] JUDr. M.K.

The Court stays the proceedings regarding payment of 10,000.- Sk.

The Court dismisses the case in the remaining part.

REASONING

The [Seller] claimed in the proceedings by its action filed with the court on 26 October 2007 its right to payment of 236,547.- Sk with interest of 14.75% annually:

On the sum of 30,952.- Sk for the period from 7 March 2007 until 14 September 2007;
On the sum of 24,495.50 Sk for the period from 15 September 2007 until payment;
On the sum of 19,709.50 Sk for the period from 19 March 2007 until payment;
On the sum of 18,092.50 Sk for the period from 21 March 2007 until payment;
On the sum of 7,762.- Sk for the period from 24 March 2007 until payment;
On the sum of 33,771.50 Sk for the period from 28 March 2007 until payment;
On the sum of 29,643.50 Sk for the period from 4 April 2007 until payment;
On the sum of 28,700.- Sk for the period from 18 April 2007 until payment;
On the sum of 20,056.- Sk for the period from 2 May 2007 until payment;
On the sum of 22,354.- Sk for the period from 9 May 2007 until payment;
On the sum of 17,178.50 Sk for the period from 16 May 2007 until payment;
On the sum of 14,784.50 Sk for the period from 24 May 2007 until payment and reimbursement of costs of the proceedings.

The [Seller] justified its claim by stating that it concluded contracts of sale for fruits and vegetables (hereinafter referred to as CS) under which the [Seller] delivered the goods and the [Buyer] received them from the [Seller]'s carrier and approbated the delivery by its signature. The [Seller] invoiced the purchase price by invoices

   -    no. 4870042 of 4 April 2007 for the sum of 30,952. - Sk due on 6 March 2007,
   -    no. 4870052 of 11 February 2007 for the sum of 19,709.50 Sk due on 18 March 2007,
   -    no. 4870058 of 18 February 2007 for the sum of 18,092.50 Sk due on 20 March 2007,
   -    no. 4870057 from 21 February 2007 for the sum of 7,762.- Sk due on 23 March 2007,
   -    no. 4870069 of 25 February 2007 for the sum of 33,771.50 Sk due on 27 March 2007,
   -    no. 4870078 of 4 March 2007 for the sum of 29,643.50 Sk due on 03 April 2007,
   -    no. 4870103 from 18 March 2007 for the sum of 28,700.- Sk due on 17 April 2007,
   -    no. 4870119 of 31 March 2007 for the sum of 20,056.- Sk due on 1 May 2007,
   -    no. 4870124 of 8 April 2007 for the sum of 22,354.- Sk due on 8 May 2007,
   -    no. 4870136 of 15 April 2007 for the sum of 17,178.50 Sk due on 15 May 2007, and
   -    no. 4870144 of 23 April 2007 for the sum of 14,784.50 Sk due on 23 May 2007.

The [Buyer] paid invoice no. 4870042 partially in sum of 6,456.50 Sk on 14 September 2007 by setting off mutual claims and it still owed to the [Seller] a sum of 236,547.50 Sk. The [Seller] fulfilled its obligation from the CS by delivering the goods to the [Buyer] and transferred title duly and on time. The [Buyer] is in default with its obligation to pay the purchase price to the [Seller]. The [Seller] justified its right to interest by referring to sec. 369 part 1 of the Slovak Commercial Code (hereinafter referred to as CC).

Before opening the proceedings on 21 January 2008, the [Seller] withdrew its action in part of 10,000. - Sk which had been paid to the [Seller] on 21 November 2007 (after filing the action with the court). Since the [Buyer] did not specify which invoice it intended to pay, the [Seller] accounted this payment on the earliest due invoice no. 4870042. The [Seller] therefore claimed in the proceeding its right to payment of principal in amount of 226.547, - Sk with interest of 14.75% annually:

   -    from the sum of the sum of 30,952.- Sk for the period from 7 March 2007 until 14 September 2007;
   -    on the sum of 24,495.50 Sk for the period from 15 September 2007 until 21 November 2007;
   -    on the sum of 14,495.50 Sk for the period from 22 November 2007, and so forth as it is prescribed in the action.

At the proceedings held on 21 January 2008, the [Seller] specified the character of its relationship with the [Buyer] by alleging that it was of a commercial nature and has to be governed by the Slovak law, since the transaction took place in Slovakia. Virtually for each invoice a separate contract of sale had been concluded by [Buyer]'s fax-sent invoice to the [Seller] and subsequent delivery of goods to the [Buyer]'s enterprise in D.K. (Slovakia), where the carriage of goods was performed by the [Seller]. The [Buyer] received the goods and gained title over them. A partial payment of the purchase price invoiced by invoice no. 487002 was made by [Seller]'s unilateral set-off.

Though duly summoned, the [Buyer] did not appear before the court in proceedings held on 21 January 2008. The court, with reference to sec. 101 part 2 CPC, therefore tried and decided the case in absence of the [Buyer].

The court gathered evidence by reading the documents consisting of the abovementioned invoices, attached international bills of lading (CMR), proofs of delivery confirmed by the [Buyer] and a [Seller]'s notice on unilateral set-off of claims. The court thereby found the action to be justified in its entirety regarding the principal and in its major part regarding the claimed interest.

The [Buyer] did not pay the sum claimed in this proceedings, except the sum of 10,000.- Sk paid by the [Buyer] after filing of the petition on 21 November 2007 and the sum of 6.456,50 Sk by a unilateral set-off, whereby a debt emerging from invoice no. 4870042 was decreased to a sum of 14.495, 50 Sk.

The court therefore upheld the claim in sum of 226,547.- Sk on grounds of non-paid purchase price for the goods delivered under article 53 of the UN Convention on Contracts on the International Sale of Goods, Notice of Ministry of Foreign Affairs no. 160/1991 Coll. The court referred to article 78 of this Convention in connection with sec. 735 of the Slovak Commercial Code (as it was also pointed out by the [Seller], the applicable internal law in this case is the Slovak law, since the contracts of sale were concluded in establishment of the [Buyer] in Slovakia) and granted the [Seller] right to interest.

Under sec. 735 of the Commercial Code, in case of default in the fulfilment of a monetary obligation, interest from the amount in arrears shall be paid in the same currency as the monetary obligation. The debtor is obliged to pay interest from the sum in arrears and the interest shall be one percent higher than the interest determined under sec. 502, while the decisive rate of interest shall be the rate stipulated or applied by banks when providing credit equivalent to the period for which the debtor is in delay, in the country where the debtor has his registered office, place of business, or residence.

As this provision is clearly applicable to this case and it is in conflict with article 3 part 1 letter d) of the Directive no. 2000/35/ES on combating late payment in commercial transactions, this section therefore cannot be interpreted in conformity with this Directive which has not been transposed. With respect to this section, the court bound the [Buyer] with reference to section 735 of the Commercial Code to pay to the [Seller] interest from the day of concluding the contract (by delivering the goods) and in case of the first invoice no. 4870042 the court took into account its partial payment made by unilateral set-off (in amount of 6.456, 50 Sk on 14 September 2007) and payment of 10.000, - Sk made on 21 November 2007. The first three invoices due in March 2007 were drawn in February 2007, another three invoices due on 3 April, 17 April and 1 May 2007 were drawn in March 2007 and the last three invoices due on 8 May 2007, 15 May 2007 and 23 May 2007, were drawn in April 2007. In February 2007, the average interest rate in new credits of commercial banks according to the National Bank of Slovakia was 7.3% annually, in March 2007 7.06% annually, and in April 2007 7.6% annually, which after the statutory increase of 1% gives the interest rate granted by the court.

In a part of the claim where the [Seller] claimed its right to payment of interest higher than the court granted, the court dismissed the action in this part as unjustified.

In a part of the claim where the [Seller] withdrew its action in amount of 10,000. - Sk, the court stayed the proceedings with reference to sec. 96 part 1, 3 CPC.

The court decided about the reimbursement of the costs of judicial proceedings under sec. 142 part 3 and granted a full reimbursement of the costs to the [Seller] in amount of 38,388.- Sk, since it was not successful with its action only in a very small part of it. The [Seller] was granted right for reimbursement of court fee for the action in amount of 13,790.- Sk... and reimbursement of costs of legal aid duly enumerated and claimed in amount of 24,598. - Sk, consisting of reimbursement of three acts of legal aid, reimbursement of traveling costs.

Instruction: An appeal against this judgment must be filed via the District Court in Dolny Kubin within fifteen days of its receipt (sec. 204 part 1 CPC).

District Court in Dolny Kubin, 21 January 2008

JUDr. Peter Bebej, Judge


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Czech Republic 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 the currency of the Czech Republic (Czech koruna) are indicated as [Kc].

** Juraj Kotrusz is a Slovak lawyer who studied law at the University of Trnava, Slovakia, and at the Hague Academy of International Law.

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Pace Law School Institute of International Commercial Law - Last updated December 8, 2008
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