Spain 6 July 2009 Juzgado de Primera Instancia No. 2 Elche (Alicante) (Aluminum cans case)
[Cite as: http://cisgw3.law.pace.edu/cases/090706s4.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 139/09
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Spain
BUYER'S COUNTRY: Germany
GOODS INVOLVED: Aluminum cans for recycling
SPAIN: Elche (Alicante) Court of First Instance No. 2 06 July 2009
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/147],
CLOUT abstract no. 1384
Reproduced with permission of UNCITRAL
A contract was concluded between a Spanish seller (A) and a German buyer (B) for the sale of 21 tons of aluminium cans that were to be “clean and pressed into bales”. The buyer refused to receive the goods and notified the seller by e-mail on the day of delivery, alleging the very low quality of the delivered goods and the impossibility of processing them. Photographs of the goods were attached to the e-mail. The seller in turn demanded payment of the price from the buyer. The case simultaneously involved the non-payment of the price of the sale agreed between seller/buyer A and its seller Y, with A claiming the contract to be avoided owing to the low quality of the delivered goods, which had travelled directly from the warehouses of the seller Y to the German buyer B.
The Court first examined the international contract and in particular the lack of conformity of the goods on the basis of article 35 CISG, citing the Supreme Court decision of 17 January 2008 as support for avoiding the contract owing to fundamental breach, and arguing that in accordance with article 217 of the Code of Civil Procedure the buyer must prove the lack of conformity. The Court considered in this regard that the goods delivered by the seller did not match the agreed specifications, since cans had been delivered packed together with scraps of other metals and waste of all kinds. The Court considered that there existed a fundamental breach (art. 25 CISG) on the part of the seller that allowed the buyer to avoid the contract (art. 49(1)(a) CISG) based, firstly, on a literal interpretation of what had been agreed by the parties, that is to say clean and pressed aluminium cans, which suggested that they should be free of any type of dirt such as organic or other waste, or different metals. Second, the Court based its decision on witness testimony, on an expert report which showed that the material that was mixed in with the cans would prevent them being processed, on samples provided (photographs where clean cans were required), and finally on the commercial activity of the buyer, dedicated to collecting entirely clean aluminium cans by means of selective gathering techniques, not taking cans from landfill sites.
The national commercial sale consisted of a verbal contract for 21 tons of aluminium cans. The buyer refused to pay the price, given that the purchase was made for resale to the German buyer and that the German buyer rejected it owing to its low quality. The Court found that the Spanish buyer had not been able to prove a link between this national sale and the international sale, after which the Court proceeded to examine the national transaction in isolation and independent of the international sale, concluding that the buyer had not been able to prove that the seller had committed a breach, especially when the representative of the buyer accepted the goods without objection and without disputing their condition.
On appeal, the Alicante Provincial High Court of 11 May 2010 dismissed the appeal by the Spanish seller/buyer A on the grounds of erroneous evaluation of the evidence, and the Court stressed, albeit without citing CISG, its breach in relation to the German buyer.
1. Judgement available at <http://www.cisgspanish.com/wp-content/uploads/2013/03/SJPIElche06_07_2009.pdf.
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
25A ; 25B [Effect of a fundamental breach ; Definition: substantial deprivation of expectation, etc.]; 35A ; 35B [Quality, quantity and description required by contract ; Requirements implied by law]; 49A1 [Buyer's right to avoid contract ; Fundamental breach of contract]
25A ; 25B [Effect of a fundamental breach ; Definition: substantial deprivation of expectation, etc.];
35A ; 35B [Quality, quantity and description required by contract ; Requirements implied by law];
49A1 [Buyer's right to avoid contract ; Fundamental breach of contract]
CITATIONS TO OTHER ABSTRACTS OF DECISION
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America database at <http://www.cisgspanish.com/wp-content/uploads/2013/03/SJPIElche06_07_2009.pdf>
CITATIONS TO COMMENTS ON DECISION
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