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CISG CASE PRESENTATION

Slovenia 9 April 2008 Higher Court [Appellate Court] in Ljubljana
[Cite as: http://cisgw3.law.pace.edu/cases/080409sv.html]

Primary source(s) of information for case presentation: European Journal of Commercial Contract Law

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Case identification

DATE OF DECISION: 20080409 (9 April 2008)

JURISDICTION: Slovenia

TRIBUNAL: Higher Court [Appellate Court] in Lujubljana

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 1 Cpg 951/2006

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Slovenia (defendant)

GOODS INVOLVED: [-]


UNCITRAL case abstract

SLOVENIA: 9 April 2008 Higher Court [Appellate Court] in Ljubljana

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/118],
CLOUT abstract no. 1151

Reproduced with permission of UNCITRAL

A Slovenian buyer sent an order for goods to an Austrian seller, who confirmed its acceptance of the offer on 8 October 1999. On 14 October 1999, the buyer sent a revocation of the offer to the seller, who immediately notified the buyer that a revocation was no longer possible because the goods had already been handed over to the carrier on 12 October. The buyer refused to pay the contract price claiming that it had revoked the offer before having been notified that the goods had been taken over by the freight forwarder.

The seller brought an action for payment of the price before the court of first instance. The court ruled that the buyer’s revocation statement had no legal consequences because the seller had already performed its obligations under the contract in their entirety.

The buyer appealed.

The appellate court applied the CISG under article 1(1)(a) as the parties had their places of business in contracting States.

The appellate court pointed the parties’ attention to the provision of article 16(1) CISG under which an offer may be revoked if the revocation reaches the offeree before it has dispatched an acceptance. The court found that because the seller had received the revocation statement on 14 October 1999 which was after it had dispatched its acceptance of the buyer’s offer on 8 October 1999 and even after it had, by delivering the goods, fulfilled its obligations under the contract of sale in their entirety, the buyer’s statement of revocation had no legal effect.

The appellate court therefore dismissed the buyer’s appeal against the judgment of the court of first instance and upheld the decision in its entirety.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 16 ; 18

Classification of issues using UNCITRAL classification code numbers:

16A [Revocation that does not reach offeree prior to dispatch of acceptance];

18A21 [Criteria for acceptance of offer (conduct indicating assent): acts of performance]

Descriptors: Acceptance of offer ; Revocation of offer

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Editorial remarks

Reproduced with permission of European Journal of Contract Law (1/2-2010) 143-144

EDITOR: Matjaz Tratnik, University of Maribor

Appellate Court Lujubljana 9 April 2008

FACTS OF THE CASE

The case concerns the sale between a Slovenian buyer (defendant) and a German seller (plaintiff). The defendant offered to purchase goods from defendant. The plaintiff accepted the offer by notice to the defendant and also dispatched the goods. Subsequently the defendant noticed the plaintiff that he was revoking his offer. The plaintiff demanded payment. The Court of First Instance decided in favour of the plaintiff.

REASONING

The Appellate Court first of all established that the legal relationship between the parties is governed by the United Nations Convention on the International Sale of Goods of 11 April 1980 ("Vienna Convention"). Pursuant to subsection (a) paragraph (1) of this Convention, it applies to contracts of sale between parties, having their places of business in the territory of different States, if those States are Contracting States to the Vienna Convention. Considering the fact that the plaintiff has his place of business in Germany and the defendant in Slovenia, and that both States are Contracting States to the Vienna Convention, the provisions of the Vienna Convention are to be applied to the disputed relationship.

On appeal, the defendant admitted that he ordered the goods from the plaintiff, but persisted in his contention that he cancelled the order before he was notified that the goods were taken over by the freight forwarder. The Court of First Instance had established that the defendant communicated the cancellation of the order on 14 October 1999 and that the plaintiff immediately notified the defendant that it could not cancel the delivery because the goods had already been handed over to the carrier on 12 October 1999. the Court of First Instance concluded that defendant's revocation notice could have no legal effect because the plaintiff had already entirely performed his obligations under the contract by handing over the goods to the carrier.

The Appellate Court confirmed the conclusion of the Court of First Instance and added that the view of the defendant that he was not informed that the goods were taken over by the freight forwarder was in this case completely irrelevant.

In accordance with Article 16 paragraph (1) of the Vienna Convention, an offer can be revoked before the contract is concluded if the revocation reaches the offeree before he has dispatched an acceptance. In this case the plaintiff, as the offeree, received the revocation of the offer, i.e. the order of the defendant, on 14 October 1999, meanwhile he dispatched his acceptance of the offer on 8 October 1999. Since the plaintiff received the revocation of the offer after he dispatched his acceptance and even after he had entirely performed his obligations under the contract of sale, the statement of the defendant that he revoked his order could not produce any legal effect.

COMMENT

This is one of the few cases where a Slovenian court has applied the CISG. The facts of the case were very clear, as was the main legal question. An offer by the buyer (the defendant) was accepted by an explicit notice by the seller (the plaintiff). The latter had even already dispatched the goods before the cancellation of the offer was communicated to him by the defendant. The court applied Article 16 paragraph (1) CISG, according to which a statement of the defendant that it revokes his order could have no legal effect. That means the buyer had the obligation to pay the purchase price.

This decision is not so important for the substantive issues, which were quite clear and simple, as much for the fact that the CISG was applied. It seems that Slovenian attorneys and judges are becoming more aware of the wide applicability of the CISG in cases where Slovenian buyers or sellers are involved. Considering the fact that most Slovenian export/import transactions are concluded between enterprises in Slovenia on one side and in German, Austria and Italy on the other, all being CISG Contracting States, all those transactions are governed by the CISG, unless contracted out by the parties.

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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 (Slovene): Slovenian court website <http://www.sodisce.si/znanje/sodna_praksa/visja_sodisca/43709/>

Translation (English): Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated June 13, 2012
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