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CISG CASE PRESENTATION

Slovak Republic 12 November 2008 Supreme Court (Baked and confectionary goods case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/081112k1.html]

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

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Case identification

DATE OF DECISION: 20081112 (12 November 2008)

JURISDICTION: Slovak Republic

TRIBUNAL: Supreme Court of the Slovak Republic

JUDGE(S): JUDr. Beata Minicova [Chair], JUDr. Viera Pepelova and JUDr. Elenna Krajcovicova

CASE NUMBER/DOCKET NUMBER: 3 Obo 194/2007

CASE NAME: Unavailable

CASE HISTORY: 1st instance Regional Court Zilina 18 June 2007 [affirmed]

SELLER'S COUNTRY: Czech Republic (plaintiff)

BUYER'S COUNTRY: Slovak Republic (defendant)

GOODS INVOLVED: Baked and confectionary goods


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 9

Classification of issues using UNCITRAL classification code numbers:

9C [Practices established by the parties]

Descriptors: Usages and practices ; Burden of proof

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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

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1444&step=Abstract>

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)

Queen Mary Case Translation Programme

Supreme Court of the Slovak Republic

12 November 2008 [3 Obo 194/2007]

Translation [*] by Juraj Kotrusz [**]

JUDGMENT
IN THE NAME OF THE SLOVAK REPUBLIC

The Supreme Court of the Slovak Republic deciding in a three-member panel composed of the Chairman JUDr. Beata Minicova and Members JUDr. Viera Pepelova and JUDr. Elena Krajcovicova in case of Plaintiff P., s.r.o. [Seller], with its registered office in K., ___, Czech Republic, represented by JUDr. J.J., attorney, versus Defendant J.B. - B.T., [Buyer], with its place of business in C., ___ Slovak Republic, regarding payment of 48,581.- Czech koruna [Kc] and appurtenances, on appeal of the [Seller] against the judgment of the Regional Court in Zilina of 18 June 2007, rec. 15Cb/219/1998-218,

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

The [Seller]'s appeal is dismissed.

The challenged judgment of the Regional Court in Zilina from 18 June 2007, rec. 15Cb/219/1998-218 is upheld.

The [Buyer] does not have right to reimbursement of costs of the proceedings.

REASONING

The Court of First Instance dismissed by the action of the [Seller] for payment of the sum of 48,581.- Kc and interest of 15 % annually on this sum for the period from 15 July 1994 until payment.

The Court of First Instance justified its judgment by stating that the [Seller] claimed in the proceedings its right to payment of purchase price for baked and confectionary goods delivered to the enterprise of the [Buyer], as evidenced by:

   -    Bills of lading no. 337685 of 19 April 1994, no. 337686 of 19 April 1994, no. 337687 of 20 April 1994, no. 337688 of 21 April 1994, no. 337689 of 22 April 1994, no. 337690 of 23 April 1994, which refer to invoice no. 29746;
 
   -    Bills of lading no. 337664 of 2 May 1994, no. 337665 of 3 May 1994, no. 337666 of 4 May 1994, no. 337667 of 5 May 1994, no. 337668 of 6 May 1994, no. 337669 of 7 May 1994 which refer to invoice no. 30825;
 
   -    Bills of lading no. 337658 of 9 May 1994, no. 337659 of 10 May 1994, no. 337660 of 11 May 1994, no. 337661 of 12 May 1994, no. 337662 of 13 May 1994, no. 337663 of 14 May 1994, which refer to invoice no. 31368;
 
   -    Bills of lading no. 337670 of 25 April 1994, no. 337671 of 26 April 1994, no. 337672 of 27 April 1994, no. 337673 of 28 April 1994, no. 337674 of 29 April 1994, no. 337675 of 30 April 1994, no. 032000 of 28 April 1999 which refer to invoice no. 30286;
 
   -    Bills of lading no. 337691 of 11 April 1994, no. 337692 of 12 April 1994, no. 337693 of 13 April 1994, no. 337694 of 14 April 1994, no. 337695 of 15 April 1994, no. 337696 of 16 April 1994, no. 031993 of 14 April 1999 which refer to invoice no. 29198;
 
   -    Bills of lading no. 337697 of 1 April 1994, no. 337698 of 2 April 1994, no. 337699 of 4 April 1994, no. 337700 of 5 April 1994, no. 337701 of 6 April 1994, no. 337702 of 7 April 1994, no. 337703 of 8 April 1994, no. 337704 of 9 April 1994, no. 031979 of 1 April 1994 and no. 031985 of 7 April 1994 which refer to invoice no. 28661;
 
   -    Bills of lading no. 337676 of 21 March 1994, no. 337677 of 22 March 1994, no. 337678 of 23 March 1994, no. 337679 of 24 March 1994, no. 337680 of 25 March 1994, no. 337681 of 26 May 1994, no. 337682 of 29 March 1994, no. 337683 of 30 March 1994, no. 337684 of 31 March 1994, no. 021301 of 24 March 1994 which refer to invoice no. 28113.

The court investigated these bills of lading which refer to the abovementioned invoices which were submitted to the court. These bills of lading do not contain the business seal of the [Buyer] or any signature or other form of confirmation of handing over the goods to the [Buyer] or its representative in the shop D. L.

Conditions of sale and delivery of the goods -- baked and confectionary goods -- by the [Seller] to the [Buyer] to its enterprise -- the grocery shop in D.L --. were prescribed in the contract of sale of 8 March 1993.

The Court qualified the relationship under the UN Convention on Contracts for the International Sale of Goods published in Collection of Acts as no. 160/1991 Coll., as the parties to the proceedings were merchants from the Slovak Republic and the Czech Republic. The court determined that delivery of the goods to the enterprise of the [Buyer] was performed from March 1993 in accordance with established commercial practice -- payment and delivery conditions which were included in the abovementioned contract of sale of 8 March 1993. The parties to the proceedings did not oppose these facts. However, the [Buyer] opposed the actual delivery of the goods.

In such a case, the [Seller] had the burden of proving that the goods were actually delivered to the [Buyer], as stated in the bills of lading. The court determined from testimony of Mrs. A., manager of the shop in D.L., that the parties to the proceedings had an established commercial practice under which the [Seller] was delivering the baked and confectionary goods to the shop of the [Buyer] where the manager or shop assistant examined the goods and approved their conformity by signing and sealing the bill of lading. One of the copies of the bill was then returned to driver of the [Seller].

The documents submitted by the [Seller] did not contain any signature or seal of the [Buyer] or its employees and the [Seller] did not submit to the Court any further evidence proving actual delivery of the goods. With respect to the argument that the [Buyer] partially paid invoice no. 401064 in the sum of 250.- Kc, the Court determined such payment from the ticket of receipt no. 60053 of 19 May 1994 that this ticket contains information about partial payment of the invoice no. 401064. There was no reason stated why this invoice was paid partially and the ticket was drawn by the [Seller] and no signature of the [Buyer] or its employee was included on the ticket.

The Court determined that the ticket of receipt submitted by the [Seller] does not refer to payment for invoice no. 31368 which is an object of these proceedings, as this ticket no. 60252 of 2 June 1994 contains information about payment of invoice no. 31038 in the amount of 364.- Kc. The [Seller] did not prove in the proceedings that, upon conditions mutually agreed in the Contract of sale from 8 March 1993, it actually delivered goods to the [Buyer] amounting to 48,581.- Kc and did not prove fulfilling its obligation under article 30 of the UN Convention. The Court of First Instance therefore dismissed the action.

The Court of First Instance decided about reimbursement of costs of the proceedings under sec. 142 part 1 CPC.

The [Seller] filed an appeal against this judgment and argued that the Court of First Instance referred mainly to the testimony of witness Mrs. K. who stated that handing over the goods was performed either by her or by one of the shop assistants. Nevertheless, the witness did not state that she was controlling her employees whether they were observing this practice -- signing all bills of delivery. The Court did not investigate whether the shop assistants could accept the goods without signing the bills of delivery and, by ignoring this possibility, the Court tolerates possible unjustified enrichment by the [Buyer] from this situation.

The [Seller] further alleged that the Court of First Instance did not take into account partial payment of invoice no. 401064 in sum of 250.- Kc which evidences the will of the [Buyer] to settle her debt. The [Buyer] could not sign the ticket of receipt as its official form provides no place for such signature and constitutes an accounting document proving receiving of money (not its payment). The [Seller] therefore insisted on its claim and argued that it delivered the goods to the [Buyer] and the goods were handed over to employees of the [Buyer]. The [Buyer] did not object to the sent invoices and expressed her will to settle her debts to the [Seller] at business meeting. The [Seller] therefore asked the Appellate Court to cancel the judgment and return the case to the Court of First Instance for further proceedings.

The Supreme Court of the Slovak Republic tried the appeal under sec. 212 part 1 and 214 part 2 CPC and decided that the appeal of the [Seller] is unjustified.

The object of the case is payment of the purchase price for the baked and confectionary goods which were, as claimed by the [Seller], delivered to the shop of the [Buyer] in D.L. The Court applied to this relationship the UN Convention on Contracts for the International Sale of Goods, published as no. 160/1991 Coll., with reference to its article 1(1).

The parties to the proceedings did not oppose the fact that their mutual relationships were regulated by a contract for the sale and delivery of goods of 8 March 1993. Under article III letter b) of this contract, the [Seller] was obliged to demand that the physical handing over of the goods and confirmation of this procedure on bills of lading by provided by signature and seal of the [Buyer]. As investigated from the documents submitted by the [Seller] to the Court, no such confirmation of handing over the goods was provided.

The Court of First Instance interrogated as a witness the manager of the shop of the [Buyer]. The witness testified that bills of delivery were always confirmed by signature of the employee receiving the handing over of the goods and by business seal of the [Buyer] and this procedure was observed regardless of the time when the delivery was performed. The Court of First Instance therefore correctly concluded that the [Seller] did not provide to the Court any evidence that the goods in question were delivered to the [Buyer].

The Appellate Court also disagrees with the argument of the [Seller] that the [Buyer] accepted her obligation by performing a partial payment, as no relevant evidence of such conduct by the [Buyer] was presented. The Appellate Court therefore upheld the judgment of the Court of First instance with reference to sec. 219 part 1 CPC AS substantially correct.

The Court decided about reimbursement of costs under sec. 224 part 1 in connection with sec. 142 part 1 CPC. As the [Buyer] claimed no reimbursement of its costs, no reimbursement was granted by the Court.

Instruction: An appeal against this judgment is not admissible.

Supreme Court of the Slovak Republic, 12 November 2008

JUDr. Beata Minicova
Chairman of the Panel


FOOTNOTES

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

** 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 July 22, 2009
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