Spain 31 March 2009 Appellate Court Zaragoza (Paletas de cerdo case)
[Cite as: http://cisgw3.law.pace.edu/cases/090331s4.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Recurso de Apelación No. 553/2008
CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 19 de Zaragoza 30 June 2008
SELLER'S COUNTRY: Belgium
BUYER'S COUNTRY: Spain
GOODS INVOLVED: Paletas de cerdo
SPAIN: Zaragoza Provincial High Court (Paletas de cerdo case) 31 March 2009
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/105],
CLOUT abstract no. 1036
Reproduced with permission of UNCITRAL
Abstract prepared by María del Pilar Perales Viscasillas
The Spanish buyer and the Belgian seller had agreed on the purchase of both fresh and frozen shoulders of pork. The seller sued for payment, but the buyer alleged a breach by the seller in respect of the quality of the goods supplied. The dispute concerned the object and purpose of the contract. The seller maintained that only a specified original weight had been stipulated. The buyer considered that the goods should meet certain conditions of weight and fat content so that they could be marketed as serrano ham, although these requirements had not been specified in the contract. The Court considered the seller's obligations under article 35.1 and 35.2 of CISG. It held that, since the contract related to a commercial sale, the goods must be fit for the buyer's purposes, that is, for resale. It investigated the question of whether the seller knew the end use of the goods and came to the conclusion that the seller had had no opportunity to find out the end use until after the problems with the goods had emerged, because it was not liable for any requirements other than those set out in the order.
As for the non-conformity with regard to the inadequate weight and fat content of the pork, the Court held, in view of article 35.1 of CISG and the expert tests carried out, that, after they had been received by the buyer, the goods had gone through the drying and curing process for several months and it was only later that a certain proportion had been considered unmarketable.
The seller therefore invoked articles 38 and 39 of CISG, arguing that the buyer had examined the merchandise and had not reported the lack of conformity within as short a period as was practicable or specified the nature of the defect. The buyer argued that the seller was not entitled, under article 40, to invoke articles 38 and 39, because the seller already knew or could not have been unaware of the facts or the lack of conformity.
The Court ruled that the goods had been delivered, received and, by going through the curing and maturing process, became part of the buyer's production process. It considered the application of article 77 of CISG, which obliged a party to take such measures as were reasonable in the circumstances to mitigate the loss, including loss of profit. If the buyer intended to exercise its rights under CISG, it had seemingly not taken reasonable steps to that end (art. 86), since it had neither rejected the goods nor deposited them in a warehouse of a third person (art. 87) if, as it claimed, it did not have means to preserve the goods, nor had it sold them (art. 88). All the goods had been received and payment had been made by November.
The Court also held that the buyer had not fully complied with articles 38 and 39 of CISG. The whole conduct of the seller showed that the goods had been accepted. This interpretation was based on the buyer's behaviour in accordance with the principle of good faith established in article 7 of CISG, which required complaints to be made quickly, circumstances permitting, so that the seller could take action in response and be given the opportunity of examining the goods or replacing them (CISG, arts. 46 and 48). In reaching its judgement, the Court cited in its support CLOUT Case 337, Germany, Landgericht Saabrücken, 26 March 1996.Go to Case Table of Contents
APPLICATION OF CISG: [-]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO OTHER ABSTRACTS OF DECISION
Spanish: CISG-Spain and Latin America website <http://turan.uc3m.es/cisg/respan79.htm>
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America website <http://turan.uc3m.es/cisg/sespan79.htm>; see also Fuente: Aranzadi Westlaw
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents