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CISG CASE PRESENTATION

Mexico 27 February 2008 Amparo Directo Tribunal [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080227m1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20080227 (27 February 2008)

JURISDICTION: Mexico

TRIBUNAL: Amparo Directo

JUDGE(S): José de Jesús Gudiño Pelayo, José Ramón Cossío Díaz, Juan N. Silva Meza, Olga Sánchez Cordero de García Villegas (Ponente) and Presidente Sergio A. Valls Hernández

CASE NUMBER/DOCKET NUMBER: 1972/2007

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Unavailable

BUYER'S COUNTRY: Mexico

GOODS INVOLVED: Unavailable


Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 1 ; 39 ; 67

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

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CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America database <http://www.cisgspanish.com/wp-content/uploads/2013/10/AMPARO-DIRECTO-EN-REVISI%C3%93N-1972-2007-1.pdf>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

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Case text (English translation) [first draft]

The CISG Translation Network

Direct Amparo 1972/2007 [1]

Translated by Profr. Pablo A. Santos Jiménez [2]

Direct Amparo [3] in review 1972/2007

Plaintiff: “Aceites Industriales El Zapote”, S.A. de C.V.

Justice authoring the Court's Opinion: Olga Sánchez Cordero de García Villegas.

Clerk: Jorge Roberto Ordóñez Escobar.

B A C K G R O U N D

Responsible authority:

First Collegiate Tribunal in Tlalnepantla, State of Mexico.

Decision fought:

Definitive decision dated 25 May 2007, issued in the appellate procedure number 340/2007

Recurrent:

The plaintiff.

In consideration:

The grievances explained in number 3, subsections a) and c), of ground fourth, since such matters were not analysed, studied or decided by the Collegiate Tribunal are founded. Therefore, this First Chamber proceeds to the corresponding analysis, concluding that the violation concepts are unfounded regarding the approach regarding articles 1 and 39 of the United Nations' Convention on the Contracts for the International Sales of Goods.

Finally, the arguments synthesised in number 3, subparagraphs b) and d) of the fourth ground, are inoperative, since their contents do not combat the decision that is being recurred, since, that, on one side it abounds in concepts already stated in its grievances and, on the other side, sets forth new matters that were not exposed in the initial constitutional suit.

In the resolutions:

First. The recurred decision is modified.

Second. The Justice of the Nation does not favour nor protect “Aceites Industriales El Zapote”, S.A. de C.V., against the authorities and acts specified in the first conclusion, in the terms of the sixth and seventh grounds in this exequatur.

Cited theses:

PRIVATIVE LAWS. THEIR DIFFERENCE WITH SPECIAL LAWS.

INOPERATIVE GRIEVANCES IN REVIEW. ARE THOSE THAT ONLY DEEPEN OR ABOUND IN THE VIOLATION CONCEPTS, WITHOUT ATTACKING THE CONCLUSIONS OF THE DECISION FOUGHT.

REVIEW IN DIRECT AMPARO, RECOURSE OF. ARE INNOPERATIVE THE GRIEVANCES OF THOSE ALIEN TO THE CONSTITUTIONAL MATTER.

Articles under discussion:

United Nations' Convention on the Contracts for International Sale of Goods.

Article 1

(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a) when the States are Contracting States; or

(b) when the rules of private international law lead to the application of the law of a Contracting State.

(2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between or from information disclosed by, the parties at any time before or at the conclusion of the contract.

(3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.

Article 39

(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

(2)…

Direct Amparo in review 1972/2007

Plaintiff: “Aceites Industriales El Zapote”, S.A. de C.V.

Justice authoring the Court's Opinion: Olga Sánchez Cordero de García Villegas.

Clerk: Jorge Roberto Ordóñez Escobar.

Mexico City. Executive Decision of the First Chamber of the Supreme Court of Justice of the Land, corresponding to 27 February 2008.

S T U D I E D A N D

C O N C L U D I N G :

FIRST. Via writ submitted on 18 June 2007 in the Common Filing Office of the Palace of Justice in Tlalnepantla, “Aceites Industriales El Zapote”, S.A. de C.V., through its legal representative José Guillermo García Hernández, requested the favour and protection of the Federal Justice, against the definitive decision dated 27 May 2007, dictated in the appellate procedure number 340/2007, by the First Civil Collegiate Chamber of the Superior Tribunal of Justice of the State of Mexico, sitting in Tlalnepantla.

SECOND. The plaintiff appointed as third aggrieved party “Alcan Rubber & Chemical Inc.”; claiming the violation of articles 14 and16 of the Mexican Constitution; narrated the background of the case and also it expressed the violation concepts that it considered pertinent.

THIRD. By court order dated 16 August 2007, the President of the Fourth Collegiate Tribunal in Civil Matters of the Second Circuit, who in reason of turn received this case to be resolved, admitted the constitutional rights' procedure and ordered its registration under number 687/2007.

After the legal procedures, on 2 October 2007, the respective decision was rendered, which was engrossed on 8 October of the same month (sic) and year, in which said Collegiate Tribunal resolved to deny favour to the plaintiff.

FOURTH. Unsatisfied with the previous resolution, the plaintiff started the motion for review, filed on 24 October 2007, before the Common Correspondence Office of the Collegiate Tribunals in Civil Matters of the Second Circuit, which, after the legal procedures, was remitted to this Supreme Court of Justice of the Land.

FIFTH. By agreement of 7 November 2007, the President of the Supreme Court of Justice of the Land admitted the review recourse, which was registered under number 1972/2007; it ordered service to the responsible authorities and the third aggrieved party and the Attorney General of the Republic to formulate the corresponding petitions, turning the matter to the Justice Olga Sánchez Cordero de García Villegas, for the drafting of the corresponding resolution, and having sent the case file to the First Chamber of this High Tribunal, in view that the matter corresponds to its specialty.

The Agent of the Attorney General did not request any particular matter.

C O N S I D E R I N G :

FIRST. This First Chamber of the Supreme Court of Justice of the Land is competent to resolve this matter, in accordance with articles 107, subparagraph IX, of the Political Constitution of the United Mexican States; 83, subsection V, and 84, subparagraph II, of the Amparo Act; and 21, subparagraph XI, of the Federal Judiciary's Organic Act, related to Item one, subparagraph I, subindents a) and b), and First Transitory of the General En Banc Executive Order 5/1999, as well as Point four of that other En Banc Executive Order 5/2001, published in the Federal Official Gazette, respectively, on 22 June 1999 and 29 June 2001; since the recourse that has been initiated against a decision issued in direct amparo by a Collegiate Circuit Tribunal and which claims the unconstitutionality of the United Nations' Convention on the Contracts of International Sale of Goods, therefore, due to the civil nature of the problem to be resolved, it correspond to the First Chamber to resolve it.

SECOND. That the motion for review on behalf of the plaintiff was filed in time and form, since the decision fought was notified on 9 October 2007, being effective as of the next day, which is on the 10th of the same month and year. This the term of ten days foreseen in article 86 of the Amparo Act started to count on Thursday 11 October and ended on Thursday 25 October 2007, without counting 12, 13, 14, 20 and 21 October, due to the fact that they were not labour days according to article 23 of the Amparo Act.

In such conditions, since from the record it can be derived that the motion for review was filed with the Common Correspondence Office of the Collegiate Tribunals in Civil Matters of the Second Circuit, on Wednesday 24 October 2007, it is evident that this motion for review was filed on time.

THIRD. Firstly, it must be analysed if this matter has all the importance and transcendence requirements foreseen in article 107, subparagraph IX, of the Political Constitution of the United Mexican States, as well as Item One of the General En Banc Executive Order 5/1999, that was published in the Federal Official Gazette on 22 June of that year, to verify if this motion for review is pertinent or not.

It is the case that the Supreme Court of Justice of the Land en banc issued Executive Order 5/1999, in which First Item establishes that for the pertinence of a motion for review in direct amparo, the following conditions must be met:

a) That the decision fought has been done on the issues of constitutionality of a law, international treaty or ordnance, or establishes a direct interpretation of a constitutional precept, or that, having had some of this matters in the Amparo Suit, the study thereof was omitted; and

b) That the constitutionality issue involves the fixation of a crucial juridical criterion that is important and transcendent, as determined by the corresponding Chamber.

Now then, referring to the second of the aforementioned requirements, the same Item One of the Executive Order mentioned above states that, as a general rule, it shall be understood that the requirements of importance and transcendence shall not be effective if there is jurisprudence on the constitutionality issue that has been called upon during the constitutional suit, as well as when there are grievances expressed or, if such is the case, the same are ineffective, inoperative or insufficient and there is no amendment of the pleadings of the complaint, or any analogue case.

In this sense, it must be mentioned that the recourse under study does comply with the requirements mentioned above, since it was filed on time and in the constitutional suit, said violation concepts where the unconstitutionality of sundry precepts of the United Nations' Convention on Contracts for the International Sale of Goods were brought forth, which were not studied by the Collegiate Tribunal that rendered the decision.

FOURTH. The elements necessary for the resolution of this instance are the following:

1. The reasoning expressed by the plaintiff in the violation concepts in which the unconstitutionality matters are based are, in essence, the following:

a) The plaintiff impugns the United Nations' Convention on Contracts for the International Sale of Goods as unconstitutional, specifically articles 1, 39 and 67.

It reasoned that, in the specific case, in the decision fought the United Nations' Convention on Contracts for the International Sale of Goods was applied in its prejudice, which in accordance with its section pertaining to the “Sphere of Application and General Provisions” amounts to a private law that is contrary to the spirit of article 13 of the Constitution, by virtue that, as per said treaty, the provisions of the federal common legislation in commercial matters are subtracted in order to be subjected to the provisions of said treaty, which means that [the plaintiff] is being judged by a private law by the sole fact that it has its address[4] in a different country than that in which its counterparty with whom it contracted has its address.

In this order of ideas [the plaintiff] considers that the United Nations' Convention on Contracts for the International Sale of Goods turns out to be a private law, forbidden by article 13 of the Constitution, since it applies only to persons that have their domiciles or establishments in different states, with which, moreover, this treaty is contrary to the equality fundamental right contemplated in article 1 of the Constitution, by virtue that, they do not receive equal treatment than that of all other commercial enterprises. That is, [the plaintiff] states that it ought to be judged as per the commercial provisions emanated from the Congress of the Union in terms of article 73 of the Constitution, and, however, [the plaintiff] is subjected to a special law that distinguishes it from all other contracting enterprises, being said law the United Nations' Convention on Contracts for the International Sale of Goods, therefore the plaintiff in its commercial activities does not receive the same treatment as all other Mexicans receive when entering into agreements, therefore, by the sole fact that its domicile is in a different place than that of its counterparty.

b) Moreover, [the plaintiff] considers article 39, paragraph I, of the United Nations' Convention on Contracts for the International Sale of Goods as unconstitutional, by virtue that as per said article, the plaintiff or any other contracting party that enters into an agreement loses the right to invoke the lack of conformity of the goods bought or hired if it does not communicate it to the seller, which, [the plaintiff] affirms, is contrary to the provisions of articles 14 and 16 of the Constitution, according to which, for a person to lose such rights, it is necessary to have a legal procedure with the previously established tribunals or that there is mandate in writing by an authority duly grounded in law and fact and, in this case, article 39 of the CISG automatically deprives the contracting parties of a right without fulfilling articles 14 and 16 of the Constitution for someone to be deprived of a right.

In this order of ideas, [the plaintiff] requested that the United Nations' Convention on Contracts for the International Sale of Goods was to be declared unconstitutional, in order that the responsible authority issued a new decision that did not apply said treaty, but the commercial legislation applicable to all Mexicans, regardless that their domicile is in different places.

2. The considerations that sustained the decision of the Collegiate Tribunal, in the corresponding part, are the following:

a) It considered as inoperative the argument of the pleader where it claims the unconstitutionality of the United Nations' Convention on Contracts for the International Sale of Goods by considering that said treaty is contrary to the provisions of article 13 of the Constitution because it was a private law, and article 1 of the Constitution, by not granting equal treatment as that received by other citizens under the legislation issued by the Congress of the Union.

The above, since the arguments expressed by the plaintiff cannot be considered as “true” violation concepts, since for such effects, [the court] said, it must contain minimum essential premises, such as mentioning which constitutional article is being infringed, the invocation of the secondary legislation claimed and the violation concepts in which it tries to legally demonstrate that the law fought is contrary to the [legal] hypotheses of the constitutional rule. Therefore if in the case under discussion the plaintiff only expresses in a general manner that the CISG is contrary to the precepts of articles 1 and 13 of the Constitution, since it excludes the application of the federal legislation, with which does not manifest the concrete provisions of the Convention in which it finds justification to its assertions.

b) On a different aspect, [the court] considered that the argument that the plaintiff sees to impugn the unconstitutionality of article 39 (1) CISG, because it is contrary to articles 14 and 16 of the Constitution is unfounded. In first place, it determined that [said article] establishes a sanction to the buyer, namely the loss of a right to rely on a lack of conformity of the goods, in the event that it does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. From there that it determined that the fact that article 39 (1) CISG contemplated a preclusion of a right as mentioned, has nothing to do with the fundamental right of being heard and defeated in court as established in article 14 of the Constitution, since there is no prohibition to turn to the judiciary to claim the right that was lost nor does it allude that the judiciary do not have an obligation to ground on law and fact the resolutions that they dictate; this is then inexact that said article is contrary to articles 14 and 16 of the Constitution.

3. The [plaintiff] manifested, in its sole grievance, the following arguments:

a) that in the decision fought, the Collegiate Tribunal declared that the arguments related to the violation of the constitutional right of equal treatment were inoperative as foreseen in the United Nations' Convention on Contracts for the International Sale of Goods, because as per said authority, the affirmations of the then plaintiff did not provide enough bases to analyse the constitutional issues, by having omitted which specific article or articles contain the aforementioned restriction, nor those that impose a different treatment to the hiring parties.

The plaintiff considers that the above is contrary to the contents of the tenth concept of violation, in that it expressly mentioned the article fought that was specifically article 1 of the United Nations' Convention on Contracts for the International Sale of Goods and, afterwards, by mentioning once more to said article considered as unconstitutional, it referred to it as the norm contained in the section “Sphere of Application and General Provisions”.

[The plaintiff] alleges that in the concepts of violation it referred expressly and concretely to article 1 of the United Nations' Convention on Contracts for the International Sale of Goods, contained in section “Sphere of Application and General Provisions” thereof, provision that is considered unconstitutional, that is, said article is the one that contains the restriction that is fought and that imposes an unequal treatment to hiring parties, therefore the Collegiate Tribunal ought to have studied the substance of the unconstitutionality issue.

[The plaintiff] alleges also that, contrary to the affirmations of the Collegiate Tribunal, by expressing the tenth concept of violation [it] complied with the formal duty of mentioning the constitutional provision that is estimated as unconstitutional (articles 1 and 13 of the Constitution) and that, likewise, it invoked the secondary provision claimed as unconstitutional (article 1 of the Section “Sphere of Application and General Provisions” of the United Nations' Convention on Contracts for the International Sale of Goods), likewise it expressed the logical juridical reasoning (concept of violation) with which it considered that the article fought results contrary to the sustained hypothesis in the constitutional precept.

That in consideration of the infringement of the Collegiate Tribunal, the grievance must be declared as with full merit in order to conduct a study of the unconstitutionality of article 1 of the Section “Sphere of Application and General Provisions” of the United Nations' Convention on Contracts for the International Sale of Goods that consists in the following:

b) In [the plaintiff's] view, the jurisprudence pertaining to the equal treatment principle must be applied on which its affirmations are based upon in its violation concepts, concretely the unconstitutionality of article 1 of the United Nations' Convention on Contracts for the International Sale of Goods that reads:

“(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States…”

Now well, as is derived from the provision transcribed above and as, [the plaintiff] alleges, pointed out in its violation concepts, this article is contrary to the constitutional right of equal treatment foreseen in articles 1 and 13 of the Constitution, since instead of being treated equally as other Mexican merchants and being subjected to the provisions foreseen in the Commerce Code applicable to acts of commerce, it is treated unequally by a circumstance that is alien to it, that is, that the person with whom it contracted that give raise to the underlying trial has its place of business outside Mexico.

That the criterion used in the United Nations' Convention on Contracts for the International Sale of Goods to determine its application, consistent with the place of business of the contracting parties, is one that generates an unjustified inequality, since it does not consider whether the goods are transported from one country to the other, nor does it contemplate if the acts of offer and acceptance happen in different places, if they are merchants or not; it simply [considers] the accidental circumstance that the parties have their place of business in different countries, this criterion produces, as a consequence of its application, the breach of equal treatment that many other Mexican merchants face, who, by entering into analogue agreements that are the basis of their trials, they are judged as per the legislation contained in the Commerce Code.

On the other hand, as per sundry jurisprudence that must be followed by the Supreme Court of Justice of the Land, the equal treatment principle must be understood as a constitutional obligation of treating equally the equals and unequally the unequals. In these conditions, the fact that the plaintiff enters into an agreement with a company that has its place of business in a different country does not make it different regarding other merchants and their operations that are subject to the Commerce Code, therefore, the application in their prejudice of the United Nations' Convention on Contracts for the International Sale of Goods, as per the criterion of article 1 thereof, generates an unequal treatment regarding equals. Even more so, an unequal treatment regarding the plaintiff in similar agreements with persons that have their establishments in our country, with which it is demonstrated that the unequal treatment is not justified based on the different place of business of the party that my client hired with.

As per the jurisprudence of this Court, [the plaintiff] affirms, the equality of our Constitutional text constitutes a complex principle that not only grants persons that they shall be treated equally before the law in their condition as recipients of the law and as final users of the administration justice system, but as well before the law in relation to its contents, and the distinction established in the Convention fought does not rest on an objective nor reasonable basis and therefore, amounts to discrimination, which is forbidden by our Magna Charta, as per the following:

- In first place, if the legislative distinction pursues an objective purpose and is constitutionally valid: the legislator cannot introduce differentiated treatments arbitrarily, but it must do so with the purpose of advancing the admissible objectives within the limitations ordained by the constitutional provisions or expressly included in them.

- In second place, it is necessary to examine the rationality or adequacy of the distinction made by the legislator: it is necessary that the introduction of a distinction constitutes an apt medium to reach an end or objective that the legislator wants to reach, that is to say, that there is an instrumentality relation between the classificatory measure and the purported end;

- In third place, the requirement of proportionality must be complied with: the legislator cannot try to reach constitutionally legitimate purposes in an openly disproportionate manner, in this manner the judiciary must determine if the law is within the scope of treatments that can be considered as proportional, having into account the factual situation, the purpose of the law and the constitutional benefits and rights affected by it; the prosecution of a constitutional purpose cannot be made at the cost of an unnecessary affectation or disproportionate of other benefits and rights that are also protected under the constitution;

- Lastly, it is of great importance to determine in each case regarding as to what is being addressed about equality, because this last one constitutes a principle and right of a fundamentally adjective character that is always predicated upon something else, and this referral is relevant at the moment of conducting a constitutional control of the laws, because the [Constitution] allows that in some aspects the legislator has a more ample room to develop its legislative labour, whereas in others the Judiciary is ordained to be especially rigorous when it has to determine that the legislator has obeyed the exigencies of the principle aforementioned.

[The plaintiff] considers that, under these circumstances, it is demonstrated that article 1 of the United Nations' Convention on Contracts for the International Sale of Goods infringes of the equality treatment right foreseen in articles 1 and 13 of the Constitution and, therefore, the decision that is the basis of this amparo procedure must be void and null by virtue that in it a law was applied that generates an unequal treatment when compared with other merchants in analogue factual circumstances.

c) Regarding the issues related to the unconstitutionality of article 39 of the United Nations' Convention on Contracts for the International Sale of Goods, [the plaintiff] considers that the Collegiate Tribunal decided incongruously with its provisions, since the arguments presented in its violation concepts consisted in that as per said article, it is allowed that [citizen] is deprived of a right without being heard and defeated in Court, and on this matter, the Collegiate tribunal did not make an analysis nor a study nor a statement, but it incongruously mentioned that in our juridical system not constitutionally, the legal figure of preclusion is foreseen.

[The plaintiff] considers that the argument and basis of the Collegiate Tribunal bears no relation whatsoever with the claims of the plaintiff, that is, there is no congruence between the loss of a substantive right and the argument of the Tribunal based on preclusion as a procedural or adjective figure, in this specific case, we are in front of a rule that cannot be applied by itself, since the temporal determining element of the loss of the right that said rule is subjected to, is an indeterminate element, that is, the right is lost within a reasonable period, therefore, the duration of the term was not established by the legislator, but as rather left to the exercise of reason, it cannot be determined by the contracting parties, but it must be determined by a legislative authority and its defect, by the judiciary.

d) In these conditions, article 39 is deemed unconstitutional, by allowing the loss of a substantive right (which is not preclusion) without granting the [citizen] a constitutional right of being heard, legality and juridical certainty contemplated in articles 14 and 16 of the Constitution, since the legality would have been achieved if said article indicated the duration of the term, but the legislator of said convention left the determination of this temporal element to the free exercise of reason, without determining as to whose reason it is, if the contracting parties or that of an arbitrator or the authority. Under these circumstances, it is unquestionable that the article under discussion is unconstitutional, because it allows that a [citizen] is deprived of a right without having established before the act itself it had been established in this law the duration of this “reasonable time”.

FIFTH. Now well, the text of articles 1 and 39 of the United Nations' Convention on Contracts for the International Sale of Goods is as follows:

Article 1

(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a) when the States are Contracting States; or

(b) when the rules of private international law lead to the application of the law of a Contracting State.

(2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract.

(3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.

Article 39

(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee.

SIXTH. The argument synthetized in number 3, subparagraph a), of ground four, in which it is alleged that, contrary to the findings of the Collegiate Tribunal that decided, the arguments presented in the first part of the tenth concept of violation are not inoperative because said arguments could not be considered as “true” concepts of violation.

Contrary to the findings of the Fourth Collegiate Tribunal in Civil Matters of the Second Circuit, this Chamber deems that the violation concept as exposed in the constitutionality matters does comply with the requirements established in the jurisprudence for the impugnation of laws in direct amparo.[5] Since it mentioned the constitutional precepts that it estimated violated; the secondary law deemed unconstitutional (articles 1 and 39 of the United Nations' Convention on Contracts for the International Sale of Goods); as well as the reasons for which it considers that said rules are unconstitutional, which gives room for its analysis, as per the criteria[6] mentioned in the amparo suit must not be examined isolated but jointly and the supplication of causa petendi [7] must be attended.

Now well, the argument exposed in the violation concepts is unfunded, by which the plaintiff alleged that article 1 of the United Nations' Convention on Contracts for the International Sale of Goods is a privative law of the kind forbidden in article 13 of the Constitution, therefore by applying a privative law, it is distinguished from all other hiring enterprises, therefore as per its judgement, it does not receive the same treatment as other Mexicans that enter into agreements. These foregoing arguments, as mentioned, are unfounded by the following considerations.

Initially, it is convenient to transcribe article 13 of the Federal Constitution, which reads:

Article 13. No one may be tried by private laws or special tribunals. No person or corporation shall have [fuero] nor enjoy more emoluments other than those given in compensation for public services and which are fixed by law. Military jurisdiction shall be recognized for the trial of crimes against and violation of military discipline, but the military tribunals in no case shall have jurisdiction over persons who do not belong to the army. Whenever a civilian is implicated in a military crime or violation, the respective civil authority shall deal with the case.

From said transcription it is derived that the body of prohibitions and limitations contained explicitly in article 13 of the Constitution have as basis the principle of equality of persons before the law, through the abolition of special jurisdictions and privileges.

Thus the Constituent in article 13 of the Constitution foresees that no one shall be tried by privative laws or special tribunals, implicating a prohibition of a general character, of issuing privative laws and that the judiciary is the one to apply said laws, guaranteeing equal treatment before the law, which (the law) must comply materially with three fundamental features: generality, permanence and abstraction. Referred (these features) to its social qualities and the purpose of its realization in the Law, banning thus all laws that disappear after they are applied to the concrete case foreseen and determined in them, since their drafting must be such that is provisions include all the subjects that comply with the hypothesis as described and applied in all identical cases, in so far as they are not repealed or derogated, and thus respect the right of the subjects to be tried by said laws, based on general norms and not exceptional or privileged provisions. Therefore the Constituent, by referring in article 13 of the Constitution that no one may be tried by private laws or special tribunals, refers to the fact that [citizens] cannot be tried by tribunals created by a specific group of subjects, in application of a law that is created for nominally specified persons and therefore, is not of general observance.

Consequently, this constitutional right shall be breached when a provision is applied or tried to apply that refers to a single person or group of persons nominally identified, and therefore cannot be applied generally to all individuals that are situated in a specific hypothesis.

In this matter are applicable the following holdings of the Supreme Court of Justice of the Land.

“PRIVATIVE LAWS. THEIR DIFFERENCE WITH SPECIAL LAWS. Privative laws are characterized because they refer to persons nominally designated, attending subjective criteria and by the fact that after being applied to the provisions and determined beforehand they lose all validity, which is forbidden by article 13 of the Political Constitution of the United Mexican States, since they attempt against the principle of legal equality; whereas special laws, even when applied to one or several categories of persons related with specific facts or situations or activities, they are in fact invested with the generality, abstraction and permanence features, since they apply to all persons that fit into the hypotheses foreseen and are not directed to one person or group of persons individually identified, plus that its legal permanence transcends after it is applied to a specific case to regulate other cases afterwards in which the hypotheses therein are actualised, therefore not transgressing the constitutional precept.[8]

Therefore, it is clear that the article fought, by not referring to one person or group of persons nominally identified, does not violate the constitutional right under study, since the same is directed to a generality that may fit into a specific hypothesis, and it is not a matter of protection thereof any subjectivity or objective criteria used for its creation.

Effectively, the law challenged was not created to be applied to a specific case and then to disappear, but its hypotheses may fit an indeterminate number of subjects. Therefore, even when the law only applies to those who enter into contracts for the sale of goods between parties whose place of business are located in different States, and even when the parties have their place of business in the same location, this does not become unconstitutional.

In this order of ideas, it is clear that the constitutional right of equality in prejudice of the plaintiff is not violated, as foreseen in article 1 of the Constitution, since the right that all subjects shall be treated equally before the law is recognized in their condition as recipients of the law and as beneficiaries of the administration of justice, but also the law (in relation to its content). That is to say, the principle of equality before the law must be understood as the constitutional exigency of treating equally all the equals and unequally all those unequal, condition that is complied with, since the article that is deemed unconstitutional shall be applied to all governed subjects that fit the same hypothesis, which is the same that fits the plaintiff.

On the other hand, the argument synthesised in number 3, subparagraph b), of the fourth ground, since, with said arguments, the plaintiff does not fight the ratio decidendi of the decision fought; at the most it abounds in the reasoning that it made in its violation concepts, in which it points out that United Nations' Convention on Contracts for the International Sale of Goods is contrary to the principle of equal treatment foreseen in article 1 of the Constitution, by virtue that it does not receive an equal treatment than that of all the other commercial enterprises, this is, that it is judged under the provisions of the commercial legislation issued by the Congress of the Union in terms of article 73 of the Constitution, and that, by the sole fact that it has its place of business in a different place that the counterparty, and thus, in consequence, it is being subjected to a special law that distinguishes it from all the other enterprises.

With the reiteration and abundance of the claims in its violation concepts, it cannot be said that the now plaintiff is combating the decision fought, since it did not specify that the arguments of the Collegiate Tribunal were not justified; it only limited itself to denounce that said collegiate organ improperly construed the constitutionality argument as presented, simply mentioning that the decision fought was “incongruent and non-exhaustive”.

It may be said that the constitutionality problem as presented by the plaintiff in its petition for constitutional relief creates a first level of argumentation, whereas in a second level, the Collegiate Tribunal apprises -- granting or not favour -- to the initial pleading. An adequate combat, proper to a revision recourse, consists of attacking precisely the reasoning of the second level and not, as the plaintiff does, returning not only to sustain but to abound to the same reasons of the first level which were already dismissed by the Higher Tribunal, which does not entail, in this case, a combat to that adduced by said organ.

Thus, the reasons of the plaintiff that it considers grievances were already analysed and appreciated by the Collegiate Tribunal that decided on the matter, and it is nowhere to be found in the writ of grievances any other type of reasons directed to combat in any manner the decision fought. Therefore the arguments analysed are inoperative.

The above is supported by the isolated holding that reads:

INOPERATIVE GRIEVANCES IN REVIEW. ARE THOSE THAT DEEPEN OR ABOUND ON THE VIOLATION CONCEPTS, WITHOUT ATTACKING THE CONSIDERATIONS OF THE DECISION FOUGHT. This Supreme Court of Justice of the Land has time and again pointed out that one of the modalities of the inoperability of grievances lays in the repetition of the arguments presented in the violation concepts. In these regards it is convenient to clarify that if a mere repetition, or even abounding in the reasons referred in the violation concepts, may originate the inoperability, for the justification thereof it is necessary that with said repetition or abundance the District Judge's reasoning of the decision is not fought. This hue is necessary because there may be the case in which the plaintiff insists in its reasons and presents them in such a manner that they assume a genuine contradiction of the arguments of the decision. In this hypothesis the reviewing authority shall have to notice a less than solid argumentation on behalf of the Amparo Judge that may be defeated with perfecting the arguments set out ab initio in the suit. However, it may also happen that the repetition or abounding of the violation concepts is no more than a mere attempt to bring substance to the review, being that the reasons sustained both in the violation concepts and the grievances had already been fully answered by the judge. In these cases, the reviewing authority must certify that the decision fought presents a full argumentation that has adequately answered all the issues of the Amparo Suit, both in quantity and quality, to be in full capacity to declare the inoperativeness of a grievance by concluding that even if the plaintiff is trying to abound or deepen its violation concepts, it is not really attacking the ratio decidendi of the decision fought.

Amparo Review 898/2006. Juan Manuel Hernández Magallanes. 7 June 2006. Five votes (en banc). [Justice authoring the Court's Opinion]: José Ramón Cossío Díaz. Clerk: Roberto Lara Chagoyán.

SEVENTH. On the other hand, the grievance synthetized in number 3, subparagraph c), of the ground four, in which it is alleged that the Collegiate Tribunal that decided omitted the study of the arguments as exposed in the initial request for trial regarding article 39, paragraph 1 of the United Nations' Convention on Contracts for the International Sale of Goods, but the argument in the concept of violation is not sound for the following reasons:

The now plaintiff alleged that the precept mentioned violates in its prejudice the constitutional right to be heard in a court of law foreseen in articles 14 and 16 of the Constitution, because it is denied a right without a fair trial.

There is no reason on behalf of the plaintiff for the following reasons:

In the first place, it is necessary to establish that this is not, contrary to the arguments of the plaintiff, a denial of a right to invoke the lack of conformity of the goods, but a provision of the loss of the same for the lack of exercise, that loss is only attributable to the plaintiff itself given inactivity on its behalf. This last matter does not mean in a strict sense that it is being denied a right without a fair trial.

In the hypothesis foreseen in the article that is being fought, it is a procedural rule that forma part of a contracting system foreseen in the Convention itself, in which there are terms, manners of contracting, offers and manners in which to terminate obligations contracted in the terms thereof. Therefore, by accepting the plaintiff to undertake the terms foreseen in the Convention, it is clear that it accepts the rules and procedures foreseen in it, since even, in different articles of the Convention it is clear that the conditions in which the parties may agree by themselves. Such is the case, by means of example, of article 58 that establishes that the buyer is not obliged to pay the price as long as it has not had the possibility of examining the goods, unless the delivery modalities or payment agreed are incompatible with said possibility.

That is to say, it is a procedural and order requirement that does not limit the plaintiff, but rather, by the contrary, the fact that the article fought foresees the possibility of invoking the lack of conformity with the goods, may be translated as a principle of resolution without conflict of the problems that may arise from the United Nations' Convention on Contracts for the International Sale of Goods.

It is evident, therefore, that the hypothesis foreseen in the article fought does not deprive it from any right, without recourse to a fair trial, but it only foresees that, by the lack of any action of a right that is potestative to it, which creates the legal consequences foreseen in the aforementioned article, which does not mean the loss, by that mere fact, the possibility to turn to the tribunals and present the reasons that it may have to sustain the fact of its inactivity.

For all the above it is conclusive that the grievances expressed by the plaintiff in the violation concepts are inoperative.

Finally the argument synthetized in number 3, subparagraph d) of the fourth ground becomes inoperative, in which it is discussed that article 39, paragraph 1, herein deemed as unconstitutional, allows the loss of a substantive right without giving the citizen the constitutional right to appear before court of law and to enjoy legality and juridical certainty as foreseen in articles 14 and 16 of the Constitution, because it allows the loss of a right of the citizen, without having had established beforehand by the aforementioned law what a “reasonable term” means.

This First Chamber considers, as already stated, that the argument above is inoperative by virtue that, as per the provision of article 83, subparagraph V, second paragraph of the Amparo Act, the matter of the review recourse against direct amparo resolutions held by the Collegiate Circuit Tribunals, it shall limit to the decision of the properly constitutional matters in regard to the law, without being able to review other and, in the exposition that is being discussed, it is foreign to such matters, since in the violation concepts it is being sought to establish the inobservance of articles 14 and 16 of the Constitution, but for a different matter, that is, because at the discretion of the then plaintiff, article 39, subparagraph 1 of the Convention, it is allowed to deprive a citizen of a right without a fair trial and not as mentioned in the grievance, because it alleges that the legislator did not establish what is to be understood as a “reasonable term”.

It is applicable to the above the following holding that reads:

DIRECT AMPARO REVIEW, RECOURSE OF. GRIEVANCES ARE INOPERATIVE IF THEY ARE ALIEN TO THE CONSTITUTIONAL MATTER DISCUSSED. In conformity with article 83, subparagraph V, second paragraph of the Amparo Act, the subject matter of the review recourse against resolutions that are held by the Collegiate Circuit Tribunals, in matters of Direct Amparo, shall be limited, exclusively, to the decision of the matters that are properly constitutional, without encompassing others. In consequence, all grievances alien to those constitutional matters examined in the resolution fought are inoperative.[9]

For the above considerations, it is resolved:

FIRST. The decision fought is modified.

SECOND. The Justice of the Land does not favour nor protect ACEITES INDUSTRIALES EL ZAPOTE, SOCIEDAD ANÓNIMA DE CAPITAL VARIABLE, against the authorities and act mentioned in the first ground, in the terms of the bases sixth and seventh of this decision.

SERVICE NOTIFICATION; attested hereof remit the file case to the place of origin and, in its opportunity, file the appeal as a closed matter.

Thus resolved by the First Chamber of the Supreme Court of Justice of the Land, en banc by Justices: José de Jesús Gudiño Pelayo, José Ramón Cossío Díaz, Juan N. Silva Meza, Olga Sánchez Cordero de García Villegas (Justice authoring the Court's Opinion) and Chairman Sergio A. Valls Hernández.

Executed by the Chairman of the Chamber and the Justice authoring the Court's Opinion Justice, with the Clerk, who authorizes and attests.

PRESIDENT OF THE FIRST CHAMBER

JUSTICE SERGIO A. VALLS HERNÁNDEZ.

JUSTICE AUTHORING THE COURT'S OPINION JUSTICE

JUSTICE OLGA SÁNCHEZ CORDERO DE GARCÍA VILLEGAS.

CLERK OF THE FIRST CHAMBER

HERIBERTO PÉREZ REYES, ESQ.


FOOTNOTES

1. All translations should be verified by cross-checking against the original text.

2. LLB - Universidad Panamericana (Mexico City), LLM -- Nottingham (UK), PhD - Complutense de Madrid and Anahuac University - Profr. of Private International Law Universidad Panamericana (Mexico City); Legal Practice in Mexico City. <santos.jimenez@att.net.mx> +52 1 55 39555488.

3. N. of Tr.: Amparo is a Mexican Constitutional trial for the protection of Fundamental (Constitutional) Rights. The closest legal figure that could somehow be equated to it is a procedure of habeas corpus.

4. To be understood as place of business.

5. Thesis 1st/J. 58/99, which reads: VIOLATION CONCEPTS IN DIRECT AMPARO SUIT. IMPUGNATION OF CONSTITUTIONALITY OF LEGAL PROVISIONS PRECISES MINIMUM REQUIREMENTS TO BE SATISFIED. The sufficient impugnation of a legal rule of law, in function to its constitutionality aspect requires that it is based on the minimum essential premises to satisfy a suit of Direct Amparo. That is, in conformity with the provisions of article 166, subparagraphs IV and VII of the Amparo Act, it is noticeable the need that the legal provision that is being fought [as unconstitutional], must be fought by an express confrontation with a specific provision of the Political Constitution of the United Mexican States through a sufficient violation concept. The cause required in this situation is based on the following indispensable elements: a) mentioning the article of the Constitution; b) calling the secondary rule of law that is pointed out as being fought; and c) the violation concepts that try to demonstrate, in a juridical manner, that the rule of law fought is contrary to the legal hypothesis of the constitution, in so far as to its contents and its reach. As of the compliance of the precision of these essential requirements, the actualization of the constitutional problem ensues, as well as the admissibility of the corresponding declaration regarding the secondary law. If these core requirements are not satisfied as indicated, the appointment of the law fought and the violation concept that does not indicate the framework and the interpretation of a constitutional precept that is broken by the former, the motives are insufficient, and desestimate the actualization of a real constitutionality problem of the law. In this manner, within the procedural distribution of the burden of prove, it is incumbent upon the plaintiff to demonstrate the unconstitutionality of a law or act of authority, except in cases where laws have already been declared as unconstitutional due to binding jurisprudence held by the Supreme Court of Justice of the Land en banc, or where the court is in front of unconstitutional acts by themselves. In this situation, the simple enunciation of constitutional precepts that were not applied must be considered as lacking of conformation of a true concept of violation, since it cannot be derived from that the efficient impugnation of the constitutionality of the secondary laws, in so far that there is no confrontation between these and a specific right protected by the Constitution in its corresponding content and reach.

6. Thesis P./J. 68/2000, which reads: VIOLATION CONCEPTS. TO BE ANALYSED, IT IS SUFFICIENT TO EXPRESS CLEARLY IN THE CONSTITUTIONAL RIGHTS' SUIT THE CAUSA PETENDI. The Supreme Court of Justice of the Land en banc considers that the jurisprudential thesis known as “VIOLATION CONCEPTS. LOGIC AND JURIDICAL REQUIREMENTS THAT MUST BE MET” is abandoned, in which it demanded that the violation concept, for it to be such, had to be presented as a true syllogism, with the major premise being the violated constitutional precept, the minor premise the acts of authority fought and the conclusion the contraposition of both, demonstrating thus, in a juridical manner, the unconstitutionality of the acts fought. The reasons of the separation of this criterion lie in that, on one side, articles 116 and 166 of the Amparo Act do not require as essential and indispensable requirement that the expression of the violation concepts is made with such rigid and solemn formalities as the ones established in the aforementioned jurisprudence and, on the other, that the amparo suit is not to be examined in isolated parts, but considered as a whole, it is reasonable that there must be as violation concepts all reasoning that, with such contents, appear in the suit, regardless that they are in the respective chapter and even if they do not keep an strict compliance with the logical form of a syllogism, but it shall be sufficient that the causa petendi is expressed clearly somewhere in the writ it, pointing out what is the lesion or grievance that the plaintiff deems the act, resolution or law causes and the motives that originated such grievance, so the Amparo Judge must study it.

7. Cause of action.

8. Thesis P./J. 18/98 Ninth epoch. En banc. Federal Judiary Weekly and Gazette, Book VII, corresponding to March 1998, page 7.

9. Thesis P./J. 46/95. En Banc. Federal Judiary Weekly and Gazette, Book II, corresponding to December 1995, page 174.

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