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CISG CASE PRESENTATION

Slovak Republic 29 April 2008 District Court Banska Bystrica (Timber case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080429k1.html]

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

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Case identification

DATE OF DECISION: 20080429 (29 April 2008)

JURISDICTION: Slovak Republic

TRIBUNAL: District Court of Banska Bystrica

JUDGE(S): Mgr. Maria Kamenska

CASE NUMBER/DOCKET NUMBER: 64 Cb/114/2007

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Slovak Republic (plaintiff)

BUYER'S COUNTRY: Hungary (defendant)

GOODS INVOLVED: Timber


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 30 ; 53 ; 59 ; 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

29 April 2008 [64 Cb/114/2007]

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 T. S., S.r.o. [Seller], with its registered office in S.X, B.B. [Slovak Republic], represented by attorney Mgr. D. Z. versus Defendant T.K. [Buyer], with its registered office in E. T., ___, Republic of Hungary, regarding payment of 13,521.82 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 13,521.82 EUR and interest of 14 % annually:

-    on the sum of 6,685.12 EUR for the period from 3 April 2006 until 15 April 2006; and
-    on the sum of 13,521.82 EUR for the period from 16 April 2006 until payment within three days after the judgment comes into force.

The Court  d i s m i s s e s  the action in the remaining part.

The [Buyer] is obliged to pay to the [Seller] a sum of 63,445.50- 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 21 May 2007 its right to payment of 13,521.82 EUR with interest of 0.09 % per day on the sum of 6,685.12 EUR for the period from 3 April 2006 until 15 April 2006 and on the sum of 13,521.82 EUR for the period from 16 April 2006 until payment as the purchase price for goods delivered to the [Buyer].

The [Seller] stated that under a contract of sale it delivered to the [Buyer] the goods (BK-dimension timber) and invoiced the purchase price by invoice no. 0010/06 of 3 March 2006 for the sum of 6,685.12 EUR and invoice no. 0013/06 of 16 March 2006 for the sum of 6,836.70 EUR. The [Buyer] recognized its obligation to the [Seller] amounting to 13,521.82 EUR in a written agreement concluded with the [Seller]. The parties also agreed in the Agreement that Slovak law would apply to their relationship and on the jurisdiction of the court in the [Seller]'s place of registered office. Since the [Buyer] is in default with payment of the purchase price, the [Seller] claimed also its right to payment of interest, as it was mutually agreed, of 0.09 % per day until payment, as it is prescribed in the invoices.

      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 article 23 part 1 a) of the EC Council Regulation no. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.

      Since Slovak courts have jurisdiction to try the case but it was not possible to establish the local competence of particular court, nor has this been established in the Agreement on recognition of obligation of 23 June 2006, the issue of competence was with reference to sec. 11 part 3 CPC submitted to the Supreme Court of the Slovak Republic which determined by its resolution no. 6Ndob 24/2007-14 of 13 June 2007 that the District Court of Banska Bystrica is competent to try the case.

The competent court ordered the hearing on 29 April 2008 and summoned the [Buyer] duly and on time, where the summons were served on the [Buyer] in accordance with sec. 48 part 2 CPC to the address stated in the Companies register of the Republic of Hungary. 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 gathered the evidence by interrogation of the [Seller] and examination of documents:

   -    International bills of lading no. SK M 0218491 and no. SK 0088868;
   -    Invoice no. 0010/06 of 3 March 2006 and Invoice no. 0013/06 of 16 March 2006;
   -    Agreement on recognition of obligation of 23 June 2006;
   -    Records from companies registers of the parties to the proceedings; and
   -    Certificate of the National Bank of Slovakia on the basic interest rate.

The court thereby concluded that:

   -    On 3 March 2006, the [Seller] dispatched the goods (BK dimension timber) to the [Buyer] via the carrier E.S, H. ___, who handed over the goods to the [Buyer] and confirmed this fact on international bill of lading no. SK M 0218491. For this shipment, the [Seller] claimed its right to the purchase price set forth in invoice no. 0010/06 of 3 March 2006 for the sum of 6,685.12 EUR due on 2 April 2006.
 
   -    On 16 March 2006, the [Seller] dispatched the goods (BK dimension timber) via the carrier N.A.D S.r.o., B. ___ to the [Buyer], who handed over the goods and confirmed this fact on the international bill of lading no. SK 0088868. For this second shipment, the [Seller] claimed its right to the purchase price in invoice no. 0013/06 of 16 March 2006 for the sum of 6.836, 70 EUR due on 2 April 2006.

The abovementioned invoices set forth the specification of the goods (oak dimension timber), the delivered amount and unit price. They also inform that the [Seller] charges interest of 0.09 % for each day of delay of payment of the invoiced price. On 23 June 2006, the [Seller] concluded with the [Buyer] the Agreement on recognition of obligation. Under its article V part 1, the parties stated, that under the contract of sale, the [Buyer] as a debtor received from the [Seller] as a creditor the goods amounting to 13,521.82 EUR and the [Seller] claimed its right to payment of a total sum of 13,521.82 EUR by invoice no. Fa0010/06 of 3 March 2006 for the sum of 6,685.12 EUR and invoice no. Fa0013/06 of 16 March 2006 for the sum of 6,836.70 EUR and received no payment by the time of concluding of this agreement. The [Buyer] acting as a debtor recognized its obligation to the [Seller] in article 2 of the Agreement in accordance with sec. 323 of the Slovak Commercial Code amounting to 13,521.82 EUR and promised to pay it in its entirety by 30 September 2006. Under article 4 of the Agreement, the parties to the agreement have chosen to govern all their mutual relationships by the law of the Slovak Republic and excluded application of Slovak choice-of-law rules. The parties have chosen in article 5 of the Agreement to submit all their mutual claims or disputes to courts of the Slovak Republic.

The [Seller] stated that it possesses no direct evidence of handing over the goods by the [Buyer] as the goods were dispatched to the [Buyer] via a carrier upon oral agreement of the parties to the contract. The [Seller] nevertheless pointed out that the [Buyer] recognized its obligation in a written Agreement of 23 June 2006. Furthermore, the [Buyer] did not notify [Seller] of any lack of conformity of the goods and did not object to the amount of the purchase price.

The [Seller] also proposed that if the court finds it necessary, it should interrogate witness F.Z. who is an owner of a sawmill and supplied the [Seller] with the goods subsequently delivered to the [Buyer].

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 Slovak law is applicable, as the parties have chosen its applicability.

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.

The court determined with reference to the evidence gathered that the parties to the proceedings concluded two implied contracts of sale in their course of business. 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. The [Seller] fulfilled its obligation when delivering the oak dimension timber by handing the goods over to the first carrier. After handing over the goods, the [Buyer] was obliged to pay the purchase price for the goods delivered on 3 March 2006 amounting to 6,685.12 EUR and for the goods delivered on 16 March 2006 amounting to 6,836.70 EUR, which means that the [Buyer] was obliged to pay a total sum of 13,521.82 EUR.

The [Buyer] did not provide any evidence that it paid the purchase price amounting to 13,521.82 EUR, or any evidence opposing the legal grounds or amount of the claim asserted by the [Seller]. It must be stressed that the [Buyer] recognized its debt amounting to 13,521.82 EUR towards the [Seller] in a written form on 23 June 2006 which gives rise to a statutory presumption that the debt existed at the time of its recognition.

The court therefore found the [Seller]'s claim to be justified with regards to the principal.

Under section 365 of the Slovak Commercial Code, a debtor is in default fulfilling an obligation duly and on time unless such an obligation is met in another manner.

Under section 369 part 1 of the Slovak Commercial Code, if a debtor is in default in fulfilment of a monetary obligation or its part, he is obliged to pay interest on the sum in arrears agreed in the contract, otherwise 10 % higher than the basic interest rate of the National Bank of Slovakia in force before the first day of the calendar half-year in which the default commenced.

With reference to the evidence gathered, the court determined that the [Buyer] did not fulfil its obligation to pay the purchase price to the [Seller] neither at the time of delivery of the goods, nor at the due date of the invoices issued by the [Seller] for this purchase price. The [Seller] thereby got into default with payment of the price. As this situation constitutes a default in fulfilment of a monetary obligation, the [Seller] is entitled to payment of interest as well.

The [Seller] claimed its right to payment of interest of 0.09 % per day and argued that the parties to the contract agreed on such interest rate, as it is stated on the abovementioned invoices.

The [Seller] nevertheless did not provide evidence of concluding an agreement with the [Buyer] on the interest rate. Such an agreement must be a bilateral act and merely presenting such a rate on the invoices without proving the [Buyer]'s consent thereto cannot be considered as an agreement on the interest rate. The court therefore granted to the [Seller] the right to interest at the statutory rate. The [Seller] claimed its right to payment of the interest from the day after the due date of each invoice, as was stated in the invoice.

With reference to the abovementioned, the court upheld the [Seller]'s action with regards to payment of the principal amounting to 13,521.82 EUR and interest of 14 % annually on the sum of 6,685.12 EUR for the period from 3 April 2006 to 15 April 2006 and on the sum of 13,521.82 EUR from 16 April 2006 until payment and dismissed the action in its residual part.

The court decided about the reimbursement of the costs of the proceedings with reference to sec. 142 part 3 CPC and granted to the [Seller] full reimbursement of its costs, as it was not successful only in a minor part of its action.

Under section 160 part 1 CPC, the [Buyer] is obliged to fulfil its obligations from this judgement 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, 29 April 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 Slovak Republic is referred to as [Seller] and Defendant of the Hungary 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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Pace Law School Institute of International Commercial Law - Last updated March 16, 2009
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