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CISG CASE PRESENTATION

Slovak Republic 7 March 2008 District Court Banska Bystrica (Fruit and vegetable case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080307k1.html]

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

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Case identification

DATE OF DECISION: 20080307 (7 March 2008)

JURISDICTION: Slovak Republic

TRIBUNAL: District Court of Banska Byrstrica

JUDGE(S): Mgr. Maria Kamenska

CASE NUMBER/DOCKET NUMBER: 64 Cb/156/2007

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Austria (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: Fruit and vegetables


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 30 ; 53 ; 59 ; 61 ; 62 ; 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 Banska Bystrica

7 March 2008 [64 Cb/156/2007]

Translation [*] by Juraj Kotrusz [**]

JUDGMENT
IN THE NAME OF THE SLOVAK REPUBLIC

The District Court of Banska Bystrica, deciding by a single judge, Mgr. Maria Kamenska, in the case of Plaintiff V. D. H. m.b.H., [Seller], with its registered office in E.X.. F___, [Republic of Austria], represented by attorney JUDr. M. C., versus Defendant B. spol. S.r.o. [Buyer], with its registered office in B.S., ___, [Slovak Republic], regarding payment of 30,425.05 Euro [EUR] with appurtenances

h a s   d e c i d e d   a s   f o l l o w s:

The [Buyer] is o b l i g e d to pay to the [Seller] the sum of 30,425.05 EUR and interest of 13 % annually on this sum for the period from 7 November 2005 until payment within three days after the judgment comes into force.

The [Buyer] is obliged to pay to the [Seller] a sum of 107,940.- Slovak koruna [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].

REASONING

The [Seller] claimed in the proceedings by its action filed with the court on 12 January 2007 the right to a payment of 30,425.05 EUR with interest of 13 % annually on this sum for the period from 7 November 2005 until payment as the purchase price for goods delivered to the [Buyer]. The [Seller] stated that under the contracts of sale, it delivered to the [Buyer] the goods consisting of various types of fruit and vegetables and invoiced the purchase price in total sum of 31,725.05 EUR by:

   -    Invoice no. 20050620 dated 20 May 2005 for the sum of 2,454.50 EUR;
   -    Invoice no. 20050663 dated 1 June 2005 for the sum of 2,922.16 EUR;
   -    Invoice no. 20050696 dated 5 June 2005 for the sum of 4,089.33 EUR;
   -    Invoice no. 20050700 dated 1 June 2005 for the sum of 1,449.04 EUR;
   -    Invoice no. 20050701 dated 5 June 2005 for the sum of 1,422.- EUR;
   -    Invoice no. 20050715 dated 9 June 2005 for the sum of 3,227.32 EUR;
   -    Invoice no. 20050770 dated 16 June 2005 for the sum of 1,188.54 EUR;
   -    Invoice no. 20050769 dated 17 June 2005 for the sum of 1,527.68 EUR;
   -    Invoice no. 20050794 dated 26 June 2005 for the sum of 2,103.42 EUR;
   -    Invoice no. 20050830 dated 1 July 2005 for the sum of 2,685.32 EUR;
   -    Invoice no. 20050845 dated 9 July 2005 for the sum of 2,095.08 EUR;
   -    Invoice no. 20050939 dated 13 July 2005 for the sum of 3,365.16 EUR;
   -    Invoice no. 20050937 dated 8 May 2005 for the sum of 1,225.- EUR;
   -    Invoice no. 20051216 dated 14 October 2005 for the sum of 1,165.50 EUR; and
   -    Invoice no. 20051236 dated 20 October 2005 for the sum of 805.- EUR.

The [Seller] handed the goods over as evidenced by the bills of lading, but the [Buyer] did not pay the purchase price. The parties concluded their contracts of sale by purchase orders placed by the [Buyer] and acceptances provided by the [Seller]. With reference to sec. 756 of the Slovak Commercial Code, such a relationship shall be governed by the UN Convention on Contracts for the International Sale of Goods published as no. 160/1991 Coll. Its provisions were adopted also by the Slovak Commercial Code which contains a practically similar regulation of sales contracts. With reference to articles 53, 59, 61(1)(a) and article 62 of the Convention, the [Seller] has a right to payment of the purchase price and the procedure of concluding the contracts was in accordance with the regulation, prescribed in Part II of the Convention, taking into consideration the argument of the [Seller] that contracts do not have to be concluded in a written form.

During the year 2006, he [Buyer] paid against the invoiced purchase price a sum of 1,300. - EUR. The residual part of the price amounting to 30,425.05 EUR has not been paid, despite:

   -    Repeated calls for payment;
   -    Recognition of the unpaid sum from 30 January 2006;
   -    Confirmation of handing over the goods from 7 February 2006;
   -    Certificate of amount of obligations from 14 March 2006; and
   -    Recognition of debt from 31 July 2006.

Since the [Buyer] is in default with payment of the price, the [Seller] claimed also its right to payment of interest with reference to article 78 of the Convention in connection with sec. 10 part 1 of act no. 97/1963 Coll. on International Private and Procedural Law. The court considered the Slovak law to be the most reasonable to apply to the relationship, since the delivery of the goods took place in the premises of the [Buyer], i.e., in the Slovak Republic and the case is tried by the court in the State of the [Buyer], i.e., in the Slovak Republic. The [Seller] claimed its right to interest from the first day after the due day of the last invoice issued.

The court issued an order for payment on 4 May 2007, rec. no. 2Rob 22/2007-22 and subsequently cancelled this order by its resolution of 27 June 2007, rec. no. 2Rob 22/2007-29, as it was not possible to serve the [Buyer] with the order.

The court ordered a hearing on 7 March 2008 and summoned the [Buyer] duly and on time; the summons was served on the [Buyer] in accordance with sec. 48 part 2 CPC to the address stated in the Companies register. The [Buyer] did not appear before the court and did not justify its absence. The court therefore tried and decided the case in its absence with reference to sec 101 part 2 CPC.

The court determined from the evidence presented that, based upon:

   -   The purchase order of the [Buyer] placed on 18 May 2005, which was confirmed by the [Seller] on 18 May 2005 as no. 20050485, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 20 May 2005, as was evidenced by bill of lading no. 20050575 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 2,454.50 EUR by invoice no. 20050620 of 20 May 2005.
 
   -   The purchase order of the [Buyer] placed on 23 May 2005, which was confirmed by the [Seller] on 23 May 2005 as no. 20050495, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 24 May 2005, as was evidenced by the bill of lading no. 20050579 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 2,922.16 EUR by invoice no. 20050663 of 24 May 2005.
 
   -   The purchase order of the [Buyer] placed on 25 May 2005, which was confirmed by the [Seller] on 25 May 2005 as no. 20050511, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 25 May 2005, as was evidenced by the bill of lading no. 20050600 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 4,089.33 EUR by invoice no. 20050696 of 27 May 2005.
 
   -   The purchase order of the [Buyer] placed on 31 May 2005, which was confirmed by the [Seller] on 31 May 2005 as no. 20050525, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 1 June 2005, as was evidenced by the bill of lading no. 20050617 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 1,449.04 EUR by invoice no. 20050700 of 1 June 2005.
 
   -   The purchase order of the [Buyer] placed on 2 June 2005, which was confirmed by the [Seller] on 2 June 2005 as no. 20050539, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 5 June 2005, as was evidenced by the bill of lading no. 20050628 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 1,422.- EUR by invoice no. 20050701 of 5 June 2005.
 
   -   The purchase order of the [Buyer] placed on 8 June 2005, which was confirmed by the [Seller] on 8 June 2005 as no. 20050558, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 9 June 2005, as was evidenced by the bill of lading no. 20050653 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 3,227.32 EUR by invoice no. 20050715 of 9 June 2005.
 
   -   The purchase order of the [Buyer] placed on 15 June 2005, which was confirmed by the [Seller] on 15 June 2005 as no. 20050585, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 16 June 2005, as was evidenced by the bill of lading no. 20050683 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 1,188.54 EUR by invoice no. 20050770 of 16 June 2005.
 
   -   The purchase order of the [Buyer] placed on 15 June 2005, which was confirmed by the [Seller] on 15 June 2005 as no. 20050592, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 17 June 2005, as was evidenced by the bill of lading no. 20050685 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 1,527.68 EUR by invoice no. 20050769 of 17 June 2005.
 
   -   The purchase order of the [Buyer] placed on 22 June 2005, which was confirmed by the [Seller] on 23 June 2005 as no. 20050620, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 26 June 2005, as was evidenced by the bill of lading no. 20050718 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 2,103.42 EUR by invoice no. 20050794 of 26 June 2005.
 
   -   The purchase order of the [Buyer] placed on 29 June 2005, which was confirmed by the [Seller] on 29 June 2005 as no. 20050633, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 1 July 2005, as was evidenced by the bill of lading no. 20050745 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 2,685.32 EUR by invoice no. 20050830 of 1 July 2005.
 
   -   The purchase order of the [Buyer] placed on 7 July 2005, which was confirmed by the [Seller] on 7 July 2005 as no. 20050649, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 7 July 2005, as was evidenced by the bill of lading no. 20050764 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 2,095.08 EUR by invoice no. 20050845 of 9 July 2005.
 
   -   The purchase order of the [Buyer] placed on 13 July 2005, which was confirmed by the [Seller] on 13 July 2005 as no. 20050660, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 13 July 2005, as was evidenced by the bill of lading no. 20050870 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 3,365.16 EUR by invoice no. 20050939 of 13 July 2005.
 
   -   The purchase order of the [Buyer] placed on 2 August 2005, which was confirmed by the [Seller] on 4 August 2005 as no. 20050731, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 5 August 2005, as was evidenced by the bill of lading no. 20050849 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 1,225.- EUR by invoice no. 20050937 of 5 August 2005.
 
   -   The purchase order of the [Buyer] placed on 13 October 2005, which was confirmed by the [Seller] on 13 October 2005 as no. 20050948, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 14 October 2005, as was evidenced by the bill of lading no. 20051082 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 1,165.50 EUR by invoice no. 20051216 of 14 October 2005.
 
   -   The purchase order of the [Buyer] placed on 19 October 2005, which was confirmed by the [Seller] on 20 October 2005 as no. 20050972, the [Buyer] purchased goods which were delivered by the [Seller] to the [Buyer] on 20 October 2005, as was evidenced by the bill of lading no. 20051103 and the [Seller] subsequently invoiced the purchase price for the goods delivered amounting to 1,165.50 EUR by invoice no. 20051236 of 20 October 2005.

Based on its investigation, the court concluded that, for each sale, the [Buyer] sent a written purchase order signed by its statutory body and sealed with office seal. The purchase order specified the amount and type of goods (vegetables or fruit), including the unit price. The [Buyer] confirmed that the [Seller] handed over the goods by the bill of lading which specified the identification number of vehicles performing the carriage of goods. The court also concluded that the purchase price as stated in the invoices, was derived from the unit price prescribed by the [Buyer] in the respective purchase orders.

The court determined that, by its letter of 30 January 2006, the [Buyer] asked the [Seller] to calculate the amount of debt valid to 31 December 2005 which amounted to 33,725.05 EUR.

The [Buyer] sent to the [Seller] via telefax on 9 February 2006 the confirmation of handing over the goods which specified the date of delivery, type and amount of the goods delivered, identification number of the vehicle performing carriage and number of invoice by which the [Seller] asserted its right to payment of the purchase price.

The [Buyer] sent a notice to the [Seller], by its letter of 14 March 2006, that it recognizes a debt to the [Seller] amounting to 32,025.05 EUR. The [Buyer] recognized its debt to the [Seller] in accordance with sec. 323 of the Slovak Commercial Code to 31 July 2006 in the amount of 30,425.05 EUR which emerged from unpaid invoices and proposed the payment of this sum in installments, where the first installment of 10,000.- EUR should be paid until 31 December 2007, the second installment of 10,000.- EUR should be paid until 31 December 2008 and the third installment of 10,425.05 EUR should be paid until 31 December 2009.

Since the [Seller] is a foreign legal person, this case constitutes a commercial contractual relationship with foreign aspect. The jurisdiction of Slovak courts to try the case is established under section 37 of act no. 97/1963 Coll. on International Private and Procedural Law, where if not provided otherwise, the jurisdiction of Slovak courts is established when the subject acting as a defendant has its residence or registered office in the territory of the Slovak Republic or when the case concerns proprietary rights, if he has property here.

Since the relationship concerned in this proceedings is based on contracts of sale, where the parties have their place of business in Contracting States of the UN Convention on Contracts for the International Sale of Goods, published in the Collection of Acts as no. 160/1991 Coll., this relationship shall be governed by the Convention which is applicable prior to the Slovak Commercial Code (as stipulated in sec. 756 of the Slovak Commercial Code). Since the Convention does not regulate all issues pertaining international sale of goods, in absence of such regulation, the law chosen by the parties is applicable. Since no choice of law was performed by the parties, the applicable law must be determined with reference to sec. 10 of act no. 97/1963 Coll. on International Private and Procedural Law as amended. The court considered the Slovak law to be the one which mostly contributes to the reasonable solution of the case, since the delivery of the goods took place in the Slovak Republic and the Slovak courts are trying the case. The Slovak law is, however, used only with regards to the interest, since article 78 of the Convention only entitles the party to claim interest in case of default with payment of the purchase price or other monetary obligation, but does not prescribe the interest rate.

Under article 30 of the Convention, the seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.

Under article 53 of the Convention, the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.

Under article 59 of the Convention, the buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller.

Under article 78 of the Convention, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.

With reference to the gathered evidence, the court investigated that the parties to the proceedings concluded in their course of business contracts of sale in implied form. By concluding each contract, the [Seller] bound itself to deliver the goods to the [Buyer] and the [Buyer] bound itself to pay the purchase price for the goods delivered. Such contracts were concluded by written purchase orders and separate written acceptances made by the [Seller] to each purchase order. The [Seller] proved in the proceedings fulfilling of its obligation to deliver the goods (fruit and vegetables) by providing bills of lading evidencing the carriage which were approved by the [Buyer] by its signature and office seal. After the [Seller] handed over the goods, the [Buyer] was obliged to pay the purchase price for the goods delivered under the particular contracts. The court deemed the purchase price to be determined by an agreement about the unit price which was stated in the purchase orders placed by the [Buyer] and it was used for calculation of total purchase price set forth by the [Seller] in the invoices.

The court thereby determined that the [Seller] is entitled to payment of the purchase price in total amount of 31,725.05 EUR for the goods delivered and that the [Buyer] partially paid the price and it still did not pay the sum of 30,425.05 EUR.

The court found the [Seller]'s claim amounting to 30,425.05 EUR to be justified, as the [Seller] proved the delivery of the goods by the bills of lading and the [Buyer] did not prove payment of the purchase price. The court refers also to the correspondence between the parties to the contracts where the [Buyer] recognized its debt in a written form on 31 July 2006.

Since the [Buyer] did not fulfil its monetary obligation to pay the purchase price, it got into default with its payment and therefore the [Seller] is entitled to interest. With reference to the rule that the law which mostly corresponds to the reasonable solution of the dispute shall be the applicable law, the right to interest was granted to the [Seller] in amount prescribed by the Slovak law (sec. 365 and 369 part 1 of the Slovak Commercial Code). With regards to the time of commencement of the default, the statutory interest rate of 13 % annually should apply. The right to the interest emerges from the first day after the due date of the last issued invoice - i.e., from 7 November 2005, as was claimed by the [Seller].

With reference to the abovementioned, the court upheld the [Seller]'s action in its entirety.

The court decided about the reimbursement of the costs of the proceedings with reference to sec. 142 part 1 CPC and granted to the [Seller] full reimbursement of its costs, as it was successful in its entire claim.

Under section 160 part 1 CPC, the [Buyer] is obliged to fulfil its obligations under this judgment within three days after it comes into force and with reference to sec. 149 part 1 CPC the [Buyer] is obliged to pay the reimbursement of the costs of the proceedings on the account of the legal counsel of the [Seller].

Instruction: An appeal against this judgment must be filed via this court within fifteen days from its receipt.

District Court Banska Bystrica, 7 March 2008

Mgr. Miriam Kamenska, Judge


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Austria 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].

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

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