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CISG CASE PRESENTATION

Slovak Republic 22 May 2008 District Court Bratislava III (F.E.G.H.C. v. T., S.r.o.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080522k1.html]

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

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Case identification

DATE OF DECISION: 20080522 (22 May 2008)

JURISDICTION: Slovak Republic

TRIBUNAL: District Court Bratislava III

JUDGE(S): JU Dr. Bozena Richtarikova

CASE NUMBER/DOCKET NUMBER: 22 Cb/269/2007

CASE NAME: F.E.G.H.C. v. T., S.r.o.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Austria (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: [-]


Classification of issues present

APPLICATION OF CISG: Yes.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 53 ; 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 Bratislava III

22 May 2008 [22 Cb/269/2007]

Translation [*] by Juraj Kotrusz [**]

JUDGMENT
IN THE NAME OF THE SLOVAK REPUBLIC

The District Court Bratislava III, deciding by a single judge, JUDr. Bozena Richtarikova, in the case of Plaintiff F.E.G.H.C. [Seller], with its registered office in W., Austria represented by attorney JUDr. M.C., A.S.M.X., B. versus Defendant T., S.r.o. [Buyer], with its registered office in S.V.C. XX., B. [Slovak Republic], represented by J.K.L.S., S. regarding payment of 8,309.39 Euro [EUR] and appurtenances

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

The [Buyer] is obliged to pay to the [Seller] the sum of 8,309.39 EUR and interest of 8% annually from 30 November 2006 and reimbursement of court fee in amount of 16.806,- Slovak koruna [Sk] and reimbursement of costs of legal aid of JUDr. M.C., attorney, in amount of 55,725.- Sk within three days after the judgment comes into force.

REASONING

The [Seller] claimed in the proceedings by its action filed with the court on 2 May 2007 its right to payment of sum in amount of 8,309.39 EUR and interest of 8% annually from 30 November 2006, based on its right to payment of purchase price, evidenced by purchase order of 21 September 2006, certificate of delivery no. 41830604, MNL CMR of 30 October 2006 and invoice no. 22009048 drawn on 30 October 2006 due after 30 days, on 29 November 2006.

On 6 June 2007, the court issued Order to pay, rec. no. 33Rob/623/2007-62, delivered to the [Seller] on 13 June 2007 and to the [Buyer] on 10 September 2007.

The [Buyer] filed a protest against the order to pay, sent by registered mail on 20 September 2007, delivered to the court on 24 September 2007 and stated that it purchased from the [Seller] goods in value of 145,260.- EUR and subsequently sold 95% of these goods to its foreign business partner in Russia. Despite advertising campaign, customers did not buy these goods in presupposed amounts due to its high price and at present, most of the goods are stored in warehouses. The [Buyer] proposed that it will return to the [Seller] the unsold goods and the [Seller] would subsequently reduce its asserted claim with respect to the value of the returned goods.

After receiving the protest, the court ordered court proceedings. The [Buyer] did not appear before the court on 28 February 2008 and 10 April 2008, apologized for its absence and appeared before the court on at proceedings held on 22 May 2008.

The court gathered evidence by reading the submitted documents and thereby investigated this factual situation and qualified it under applicable legal provisions.

The [Seller] stated that it claims its right to payment of the purchase price in amount of 8,309.39 EUR with interest of 8% annually from 30 November 2006 until payment, referring to the contractual relationship between the parties to the dispute, which was established by the [Buyer]'s purchase order and its subsequent acceptance by the [Seller] made on 31 September 2006. The [Seller] delivered the goods to the [Buyer], as it was approved by the [Buyer] on MNL CMR of 30 October 2006 and on the certificate of delivery of 30 October 2006. On 30 October 2006 the [Seller] drew invoice no. 51604216 for the sum of 8309.39 EUR due on 29 November 2006, which was not paid by the [Buyer]. The [Seller] therefore claims also a right to payment of interest of 8% corresponding to double discount rate.

The [Seller] is an Austrian corporation and the relationship therefore shall be qualified under provisions of UN Convention on Contracts for the International Sale of Goods (published as no. 160/1991 Coll.) in connection with sec. 756 of the Slovak Commercial Code (hereinafter referred to as "CC") and sec. 409 and following CC.

   -    The [Seller] claimed its right to payment of the purchase price with reference to art. 53 of the Convention, according to which a buyer is obliged to pay purchase price for delivered goods.
 
   -    Under art. 59 of the Convention, the buyer must pay the price on the date fixed by the contract.
 
   -    Under art. 62 of the Convention, the seller may require the buyer to pay the price, take delivery or perform his other obligations.
 
   -    One of the basic rights of the seller under article 61(1)(a) of the Convention is the right to demand payment of the purchase price.
 
   -    Under article 78 of the Convention, the [Seller] has right to payment of interest. Interest rate is with reference to article 78 and in connection with sec. 10 part 2 a) act no. 97/1963 Coll. prescribed by Austrian law amounting to 8% per annum.

The [Buyer] stated that it did not pay the purchase price, since it was not able to resell all the goods delivered and therefore has no money to pay the purchase price to the [Seller]. In order to settle the dispute, the [Buyer] proposed that it would pay 50% of the claimed purchase price amounting to 4,154.50 EUR by 30 June 2008 and the residual part by 30 December 2008 and would reimburse of costs of the proceedings within 5 days after the judgment comes into force.

The [Seller] did not agree with the proposed settlement and insisted on its claim in its entirety.

With reference to the submitted documents, the court found to be proved that:

   -    There was no contract concluded in a written form. However, the contractual relationship was established in implied manner by the purchase order from 11 September 2006 approved by the [Buyer] and the [Seller] on 21 September 2006 and the subsequent delivery of the goods in amount of 21 660 kg approved by the [Buyer] on MNL CMR no. 113924 on 30 October 2006 and on the certificate of delivery on 30 October 2006.
 
   -    Subsequent to the delivery, the [Seller] drew on 30 October 2006 invoice no. 51604216 due on 29 November 2006 for 8,309.39 EUR.

According to sec. 409 part 1 CC, under a contract of sale, the seller undertakes to deliver to the buyer movable property (goods) determined individually, or at least according to kind and to assign to the buyer the title to the said goods while the buyer undertakes to pay the purchase price.

Under sec. 409 part CC, the contract of sale must include the purchase price, or at least the method of determining such a price later, unless the contracting parties manifest their will to conclude the contract without determining the purchase price. In this event, the buyer undertakes to pay the purchase price determined under sec. 448.

Under sec. 411 CC, the seller must undertakes to deliver goods, to pass over the documentation related to the goods and to enable the buyer to take title to the goods in accordance with the contract and this Act.

Under sec. 443 part 1 CC, the buyer acquires title to the goods as soon as the delivered goods are handed over to the buyer.

Under sec. 447 CC, the buyer undertakes to pay the purchase price and to take over the delivered goods in accordance with the contract.

Under sec. 448 part 1 CC, the buyer undertakes to pay the agreed purchase price.

Under sec. 448 part 2 CC, if neither the purchase price nor the method of its determination is agreed in the contract, and if the contract is valid with regard to sec. 409 part 2, the seller may demand payment of the purchase price for which the same or comparable goods were, as a rule, sold at the time when the contract was concluded under the terms similar to those of the said contract.

Under sec. 272 part 1 CC, the contract must be in writing to be valid only in instances stipulated by this Act, or if at least one party negotiating the contact requests the need for the contract to be in writing.

Under sec. 275 part 4 CC, with regard to the subject of a proposal to conclude a contract or with regard to the practice the parties have established in their mutual conduct, or with regard to the common practices relevant under this Act, a person to whom the offer is directed may express approval by performing the activity (e.g., the dispatch of goods or the payment of a purchase price) without advising the other party. In this event, the acceptance of the offer is deemed to be effective from the moment of the performing of the activity as long as it occurred prior to the time limit for accepting the offer.

Under sec. 517 part 2 of the Slovak Civil Code, if a debtor is in default with payment of a pecuniary debt, a creditor has right to payment of interest on this sum, unless the debtor is obliged to pay interest charge with reference to special statute; interest rate and interest charge is prescribed by special act.

Interest rate amounts to double discount rate published by the Slovak National Bank valid at the first day of the default (sec. 3, 4 of ordinance of the Slovak government no. 87/1995 Coll.).

With reference to the evidence gathered, taking into consideration relevant legal provisions, the court concluded that the [Seller]'s claim asserted in the proceedings was justified in its entirety and the court therefore upheld it in its entirety.

The [Seller] is a foreign legal person, but the parties to the contract agreed with reference to sec. 10 part 2 a) of act no. 97/1963 Coll. and to the UN Convention on Contracts for the International Sale of Goods, that their commercial relationship will be governed by Slovak law under sec. 409 and following CC.

There was no contract concluded in a written form and the contractual relationship was established in implied manner by purchase order from 11 September 2006 approved by the [Buyer] and the [Seller] on 21 September 2006 and the subsequent delivery of the goods in amount of 21 660 kg approved by the [Buyer] on MNL CMR no. 113924 on 30 October 2006 and on the certificate of delivery on 30 October 2006.

Subsequent to the delivery, the [Seller] drew on 30 October 2006 invoice no. 51604216 due on 29 November 2006 for 8,309.39 EUR.

The court therefore bound the [Buyer] to pay to the [Seller] the purchase price for the delivered goods in amount of 8,309.39 EUR with interest of 8% annually from 30 November 2006 until payment.

Right to interest was granted to the [Seller] amounting to double the discount rate published by the Slovak National Bank: 4% x 2 = 8% p.a. from the day following the maturity date of the invoice.

The court decided about the reimbursement of the costs of judicial proceedings under sec. 142 part 1 CPC. The [Seller] was successful in its entire claim and the court therefore bound the [Buyer] to pay reimbursement of the court fee amounting to 16,806.-Sk, corresponding to 6% of the asserted claim with reference to act no. 71/1992 Coll. on court fees as amended.

The court decided about the reimbursement of legal aid provided by J. M.C., attorney, with reference to ordinance no. 655/2004 Coll. and granted right to reimbursement of seven acts of legal aid, each amounting to 7,650.- Sk.

Instruction: An appeal against this judgment must be filed via this court within fifteen days of its receipt /in two versions/.

District Court Bratislava III, 22 May 2008

JUDr. Bozena Richtarikova, Judge


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Republic of Austria is referred to as [Seller] and Defendant of the Slovak Republic is referred to as [Buyer]. Amounts in the currency of the European Union (Euro) are indicated as [EUR]; 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.

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