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CISG CASE PRESENTATION

Greece 2009 Decision 4505/2009 of the Multi-Member Court of First Instance of Athens (Bullet-proof vest case) [editorial analysis available]
[Cite as: http://cisgw3.law.pace.edu/cases/094505gr.html]

Primary source(s) of information for case presentation: Commentary by Dionysios P. Flambouras

Case Table of Contents


Case identification

DATE OF DECISION: 20090000 (2009)

JURISDICTION: Greece

TRIBUNAL: Multi-Member Court of First Instance of Athens (Polimeles Protodikio Athinon)

JUDGE(S): Chair: Ioannis Maroudis (President of Judges of the Court of First Instance) (Proedros Protodikon); Judge Reporter: Konstantinos Protonotarios, Judge of the Court of First Instance (Protodikis)

CASE NUMBER/DOCKET NUMBER: 4505/2009

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Netherlands (plaintiff in the primary action)

BUYER'S COUNTRY: Greece (defendant in the primary action)

GOODS INVOLVED: Material to be used by the Buyer for manufacturing bullet-proof vests


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 7 ; 39 ; 74 [Also cited: Articles 2 ; 3 ; 6 ; 8 ; 9 ; 14 ; 15 ; 16 ; 18 ; 23 ; 25 ; 30 ; 31 ; 33 ; 35 ; 36 ; 38 ; 44 ; 45 ; 46 ; 49 ; 50 ; 53 ; 57 ; 58 ; 59 ; 60 ; 61 ; 62 ; 64 ; 66 ; 67 ; 69 ; 73 ; 77 ; 78 ; 79 ; 81 ; 84 ; 99 ; 100 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): set-off, statute of limitations, torts, unjust enrichment];

7A11 ; 7A2 [Principles of interpretation of Convention: autonomous interpretation v, reliance on domestic law; Uniformity in application of Convention];

39B4 [Requirement to notify seller of lack of conformity (cut-off period of two years): relationship to statutory limitation / prescription period];

74A ; 74B ; 74C [General rules for measuring damages: loss suffered as consequence of breach; Outer limits of damages: foreseeability of loss; Other issues: moral damages, loss of good will]

Descriptors: Scope of Convention ; Set-off ; Statute of limitations ; Torts ; Unjust enrichment ; Burden of proof ;Interpretation of Convention ; Internationality ;Lack of conformity notice ; Damages ; Foreseeability of damages

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Editorial remarks

EDITOR: Dionysios P. Flambouras [*]

[The Greek text of this case is 107 pages.

   -    The materials presented below in Section 1 ("FACTS"), and in paragraph 2.4.2 of Section 2 ("RECITAL OF PRINCIPLES OF LAW") are summaries of the most important facts prepared by the Editor). These are summaries of material that is presented in a very detailed manner in the opinion.
 
   -    The materials presented below in paragraphs 2.1 through 2.4.1 of Section 2 ("RECITAL OF PRINCIPLES OF LAW") and Section 3 ("RULING OF THE COURT") are excerpts from the opinion translated by the Editor.

Also, to facilitate the readers' review of the opinion, the Editor has separated the presentation into paragraphs and has added titles and numbers [which do not exist in the original Greek text]. Material that appears in [brackets] within the translated excerpts has also been added by the Editor.]

  1. Facts [summary of the facts recited in the judgment, prepared by the Editor]
                1.1    International bid stage - Contract between EBO SA and Greek Police
                1.2    Contract of sale between DSM Dyneema - Electromichaniki Kimis EPE
                1.3    Performance of the Sale Contract by Seller and Buyer
                1.4    Non-payment of outstanding purchase price by the Buyer
                1.5    Meeting in Athens 25 September 2002 - Failure at 20 September 2002
                         ballistic test: penetration of bullet-proof test
                1.6    Correspondence related to the non-payment of the outstanding purchase
                         price and the non-taking over of the remaining material
                1.7    Additional test on 30 October 2002
                1.8    Results of Failure Analysis
                1.9    Further exchange of correspondence - new test on 4 September 2003
                         further tests by the Seller in the Netherlands
                1.10  Conclusion by the Buyer of an agreement with a new supplier
                1.11  Final correspondence
  2. Recitals of principles of law [sections 2.1 through 2.4.1 are translated excerpts]
                2.1    Jurisdictional matters
                         2.1.1    General comments on Regulation EC 44/2001
                         2.1.2    Jurisdiction in contract disputes
                         2.1.3    Jurisdiction in matters relating to tort or quasi tort
                         2.1.4    Agreements conferring jurisdiction on courts
                                     of a Member State: prorogation of jurisdiction
                         2.1.5    Jurisdiction where defendant enters an appearance
                2.2    Matters in connection with the CISG
                         2.2.1    General comments
                         2.2.2    Autonomous interpretation of the CISG
                         2.2.3    Autonomy of the parties under the CISG; Selection by the
                                     parties of the law of a country that has adopted the CISG
                         2.2.4    Application of the CISG: Subjective sphere of application;
                                     Objective sphere of application; Territorial sphere of appli-
                                     cation; Temporal sphere of application
                         2.2.5    Issues governed by the CISG: General description of
                                     the seller's and buyer's obligations under the CISG
                         2.2.6    Issues that are not governed by CISG: Methodology of CISG
                                     Article 7(2); General principles; Set-off / Statutory limitations
                         2.2.7    Liability for non-performance under the CISG;
                                     Exemptions from liability in the CISG
                         2.2.8    Remedies for non-performance under the CISG
                         2.2.9    Seller's obligation to deliver goods conforming to the contract
                         2.2.10  Buyer's remedies under the CISG if goods do not conform to the contract;
                                     Buyer's duties under CISG 38, 39 (reasonable period); Burden of proof
                         2.2.11  Remedy of damages under the CISG
                         2.2.12  Claim for interest under the CISG
                         2.2.13  Time of delivery of the goods under the CISG
                         2.2.14  Pre-contractual liability in contracts governed by the CISG
                         2.2.15  Concurrent application of domestic provisions in tort and CISG provisions
                         2.2.16  Unjust enrichment claims in contracts governed by the CISG
                2.3    Private international law matters
                         2.3.1     1980 Rome Convention [applicable law on contractual liability]
                         2.3.2     Article 26 of Greek Civil Code [applicable law on liability in tort]
                2.4    Greek domestic rules
                         2.4.1     Pre-contractual liability: Articles 197-198 of the Greek Civil Code
                         2.4.2     Other domestic rules [summary of the judgment]
  3. Ruling of the Court [translated excerpt]
                3.1    Seller's Claim
                         3.1.1     Seller's Claim Request
                         3.1.2     Ruling on Seller's Claim
                3.2    Buyer's Claim
                         3.2.1     Buyer's Claim Request
                         3.2.2     Ruling on Buyer's Claim
                3.3    Final (conclusive) part of the judgment
  4. Other Citations

1. FACTS AND CLAIMS [summary of the facts recited in the judgment, prepared by the Editor]

1.1 International bid stage - Contract between EBO SA and Greek Police

The Greek Police, through the Greek Ministry of National Defense, and in cooperation with the Hellenic Weapon Industry of SA ["EBO SA"], wanted to acquire bullet-proof vests for its personnel. EBO SA undertook to manufacture and provide the vests to the Greek Police. Prior to the conclusion of the contracts, EBO SA launched an international lowest-bidder tender for the supply of bullet-proof material to be used in the manufacture of the bullet-proof vests. EBO SA sent invitations to various manufacturers (Dupont, Twaron Products, Plasan Sasa, Petris Solvises, Ares Protection, DSM Dyneema).

Based on EBO SA's invitation, Electromichaniki Kimis EPE, a corporation with its registered seat in Greece and a direct subsidiary of EBO, SA, offered to manufacture bullet-proof vests providing a level of protection corresponding to the specifications set out by the National Institute of the USA (NIJ) 0101.03, level IIA, with the understanding that the vests would be tested at an official laboratory in accordance with the methods of NIJ.

Eletromichaniki Kimis EPE had past experience with the unprocessed material of DSM Dyneema, a corporation with its registered seat in the Netherlands. Their cooperation had started on 1994, when DSM Dyneema sold UD Dyneema sheets to Eletromichaniki Kimis EPE.

Detailed evaluation criteria [for light equipment of NIJ IIIa type] were sent by EBO SA together with the invitation to DSM Dyneema. On 14 February 2000, DSM Dyneema submitted its Financial Tender to EBO SA for alternative specifications/solutions of material Dyneema SB21 and Dyneema SB 31 in connection with the order set by the Greek Ministry of National Defense. In particular, Dyneema UD-XSB 31 was an experimental light bullet-proof material. At annex 4 of its offer, DSM Dyneema noted that this was a new material in the market and did not exist for enough time to have data resulting from real experience; however, it warranted that Dyneema UD-XSB 31 complied with the specifications set out in the technical manual issued for this type, for a "life" expectancy of ten years from the date of delivery, provided that the terms set out in the technical manual were complied with.

EBO SA selected the Institute of Granfield University in order to proceed with ballistic tests on the RMCS Shrivenman at two models NIJ 0101.03 and NIJ 0108.01. At the tests that took place in November 2000 at the University of Granfield in order to select a supplier for Electromichaniki Kimis EPE, following the request by EBO SA, use was made of the potential bullet-proof materials and not of vests manufactured by such material with specific design.

Based on the results at the University of Granfield, EBO SA and Elecctromichaniki Kimis SA considered that the offer submitted by DSM Dyneema was the most beneficial and elected to purchase from DSM Dyneema the unprocessed bullet-proof material UD-XSB31, in order for Electromichaniki Kimis EPE to manufacture bullet-proof vests.

On 21 June 2001, an agreement (no. 16A/2001) was executed between the Ministry of National Defense and EBO SA [the "EBO Supply Agreement"] under which EBO SA agreed to supply to the Greek Army and the Greek Police 10,020 bullet-proof vests with protection level IIA and 2,000 bullet-proof slabs with protection level III. The EBO Supply Agreement, among others, provided that:

      (a) EBO SA would have the exclusive responsibility for the qualitative examination of the DSM Dyneema material (and any technical improvements - amendments) to be performed at its premises (Clause 5 and 7); and

      (b) The contractual material would be accompanied, upon delivery to the Committee for the final take over, with compliance certificates of the Seller and of EBO SA which would cover the inland part, as well as the vest as a final product (Clauses 5 2 and 7 1);

      (c) Following production of the vests by EBO SA and delivery of each installment and written notice to the Greek Ministry of Defense, the Greek Ministry of Defense would proceed with a qualitative examination of the end product and qualitative receipt of the product (Clause 7 2);

      (d) EBO SA warranted the good "behavior" of the bullet-proof material of DSM Dyneema for ten years (Clause 9 1).

      (e) Within twenty days of the determination of a defect, the Greek Ministry of Defense would provide a written notification to EBO SA, in connection with any defective part, which would be covered by the contractual warranty and would return such defective part to the premises of EBO SA, accompanied by detailed relevant minutes explaining the reasons for which repair or replacement is necessary and EBO SA would proceed with any necessary repair as soon as possible at its own expenses (Clause 9 4);

      (f) In the event that, within the warranty period, a defective part of the same material appears for a percentage exceeding 10% of the goods received, such defect would be classified as "systematic" and EBO SA would be obligated to replace the defective part in all material, free of charge for the Ministry of Defense; and

      (g) The manufacturing of the vests would take place at the premises of EBO SA and at the premises of Greek sub-contractors (Clause 11 1).

1.2 Contract of sale between DSM Dyneema - Electromichaniki Kimis EPE

Following the said international lowest-bidder tender, DSM Dyneema [the "Seller"], agreed to sell to Electromichaniki Kimis EPE [the "Buyer"], 155,000 linear meters of bullet-proof material of the type "DYNEEMA UDX/SB31" [the "Material"] and with 160 cm in width, to be delivered in Athens, for the price of 2,515,464.00, under the terms of contract of sale no. 46/2001 dated 4 July 2001 [the "Sale Contract")]. It was agreed that the Seller would deliver the agreed quantity of Material in seven (7) installments as follows [as set out in Clause 2.1 of the Sale Contract]:

   -    1st installment: 15,000 linear meters by January 2002;
   -    2nd installment: 20,000 linear meters by February 2002;
   -    3rd installment: 20,000 linear meters by March 2002;
   -    4th installment: 25,000 linear meters by April 2002;
   -    5th installment: 30,000 linear meters by May 2002;
   -    6th installment: 30,000 linear meters by June 2002;
   -    7th installment: 15,000 linear meters by July 2002.

The Department of Purchase and the Department of Qualitative Examination of the Buyer would take over each installment and would perform initial examination of the material (Clause 2.3 of the Sale Contract).

Each installment would be accompanied by a Quality Compliance Certificate (Clause 2.6 of the Sale Contract).

Payment of the purchase price by the Buyer would be effected as follows (as per Clause 3.2.1 of the Sale Contract):

   -    40% of the total purchase price (i.e., 1,006,185.60) would be paid in advance by 15 July 2001 against a bank guarantee.
 
   -    The remaining balance (i.e., 1,509,278.40) would be paid in installments within thirty days after receipt of an invoice for each delivery installment (Clause 3.2.2 of the Sale Contract).

The Buyer was entitled under the Sale Contract to reject the Material in full or in part if it was not in absolute compliance with the contractual specifications (Clause 4.1 of the Sale Contract). In the event that the Material was rejected in full or in part, the Seller would be obliged to replace the rejected Material with an equal quantity of Material which would be in absolute compliance with the contractual specifications; the said replacement should be effected within thirty days as of the notification of the relevant report of the Buyer's Department of Quality Control; the Seller would bear any cost for the transportation of the replacement quantity of Material to the Buyer (Clause 4.2 of the Sale Contract). The Seller warranted that the Material was free from any legal defect (Clause 7.2 of the Sale Contract) and any apparent or hidden real defect (Clause 7.3 of the Sale Contract).

1.3 Performance of the Sale Contract by Seller and Buyer

In order to perform the Sale Contract, the Buyer paid in advance to the Seller on 12 June 2001 the amount of 1,006,185.60 (40% of the total price). During the period between 11 January 2002 through 19 July 2002, the Seller delivered in installments to the Buyer (ten shipments) 125,129 liner meters of Material. The Quality Compliance Certificates that accompanied the delivered installments confirmed that:

      (a) The Material complied with the applicable manufacturing specifications for the product level which had been examined, pursuant to the internal examination procedures adopted by the Seller; and

      (b) The Buyer should examine the fitness of the level for the actual application and [the Buyer] was not discharged from its obligation to effect the usual examination for the product that it was taking over.

It is mentioned in the judgment that based on: (a) the content of the Quality Compliance Certificates; and (b) a witness statement under oath dated 5 November 2005 (delivered by the Seller's Vice-Chairman of the Department of Life Protection for Asia, the Court found that the Seller as supplier of raw material only warranted that the raw material should comply with its relevant specifications and no further warranty was provided. It was for the manufacturer of the vests to select the raw material for the manufacturing of the [bullet-proof] vests and to design and manufacture the vests in the appropriate manner, in order to achieve the necessary level of protection.

1.4 Non-payment of outstanding purchase price by the Buyer

Every shipment went through qualitative and quantitative examination by the Department of Purchase and the Department of Qualitative Examination of the Buyer and the Buyer never rejected any quantity of delivered Material. The Buyer paid the price for the first six installments/shipments of Material. However, the Buyer did not pay the price for the subsequent four installments/shipments corresponding to:

   -    5,461 (inv. no. 13196/30 May 2002),
 
   -    25,000 (inv. no. 13.195/31 May 2002),
 
   -    24,600 (inv. no. 13.439/19 July 2002), and
 
   -    24,600 (inv. no. 13.440/19 July 2002) linear meters of Material

although: (a) 60 days passed [an additional period of 30 days was granted by the Seller to the Buyer] as of the date of issue of each invoice; and (b) the quantities of Material had been taken over by the Buyer.

1.5 Meeting in Athens 25 September 2002 - Failure at 20 September 2002 ballistic test: penetration of a bullet-proof vest

There was correspondence between the Seller and the Buyer and a meeting took place in Athens on 25 September 2002 where: (a) the Buyer informed the Seller that it would discharge the outstanding invoices by the end of September 2002; and (b) for first time, the Buyer informed the Seller that there was a "failure" during tests effected by the Greek Police on 20 September 2002. The Seller during the meeting agreed to offer to the Buyer full assistance, transparency and access to its records and declared that it would do its best for the clearance of the matter.

In connection with the said "failure" during the tests, from the text of the judgment the following appears to have happened:

      On 20 September 2002, the Visiting Team for Qualitative Examination, which had been established for the monitoring of the EBO Supply Agreement, proceeded with ballistic examination at the premises of the ballistic station of PYRKAL of a bullet-proof vest manufactured from sample Material originating from the 5th installment/shipment of Material. The ballistic examinations included shots with sub-machine-gun of 9 mm and MAGNUM pistol 44 mm. The following ammunition was used: 9mmX 19 Full Metal jacket Lot 304-IVI-79. This was not the ammunition set out in annex B of the EBO Supply Agreement which should be used for the operative examination of the sample bullet-proof vest.

      In particular, during the ballistic examinations it was found that in the 5th shot (out of 6 shots) with the MP5 sub-machine-gun, from a five meter distance and with a speed of 426/15m/s, the vest was penetrated. In particular, as set out in a Failure Analysis dated 31 March 2003 prepared on behalf of EBO SA, the bullet-proof vest that was examined was of an external type with a zip on the front side and each of two front breastplates was covering the other front breastplate for approx. 10 cm; it was further noted that the "failure" took place at the imaginary line of overlapping of the specific vest.

       Due to the said penetration it was resolved by the Visiting Team for Qualitative Examination and the representatives of the end-user of the vests (i.e., the Greek Police) that EBO SA should proceed with a Failure Analysis of the incident and the 5th lot of vests should be returned to EBO SA.

1.6 Correspondence related to the non-payment of the outstanding purchase price and the non-taking over of the remaining material

During the meeting that took place in Athens on 25 September 2002 (see paragraph 1.5 above), the Buyer did not set as a condition for the discharge of the outstanding invoices the issue of the results of the Failure Analysis.

The Buyer although having received goods the price of which corresponded to 438,771.58, did not pay this amount despite continuous notifications by the Seller. In addition, the Buyer told the Seller not to deliver the last installment of goods (the price of which corresponded to 290,856.22) since the bullet-proof vests that the Buyer manufactured for the Greek Police were defective, due to the fact that within the context of a sample check, a bullet penetrated a vest at a specific point. Despite the fact that the Buyer had reassured the Seller that it would discharge the outstanding invoices by the end of September 2002, [the Buyer] only discharged on 3 October 2002 invoice no. 13195/31 May 2007 (equal to 243,432 which was the purchase price for the 8th shipment).

By means of a facsimile message, the Seller protested on 8 October 2002 to the Buyer and to EBO SA over the non-payment of the outstanding invoices no. 13196/30 May 2002, 13439/19 July 2002 and 13440/19 July 2002, setting a new period of fourteen days for the discharge of the total outstanding amount, and informed the Buyer that otherwise it would assign the collection of the outstanding amount to a third party.

On 8 October 2002, the Business Director of EBO SA by means of a facsimile message informed the Seller that the [Seller] would receive the purchase price on the condition that the Greek Police would pay the purchase price to EBO SA from the sale of the vests under the EBO Supply Agreement.

On 9 October 2002, by means of a facsimile message from the Business Director of EBO SA, the Seller was notified that payments of the outstanding purchase price would be suspended until completion of the analysis of the Failure Analysis.

On 18 October 2002, by means of facsimile message from the Business Director of EBO SA, the Buyer was informed that on 20 September 2002 the penetration happened on the vest during the test (see item 1.5 above) and invited the Buyer to participate in ballistic examinations over the same ballistic material that had been scheduled within the context of the failure analysis and which would take place on 30 October and 1 November 2002 over samples to be selected randomly from the Dyneema 110097 lot and in particular box no. DSM 2002203244 which included Material from which the penetrated vest had been manufactured.

As results from the Failure Analysis and from the content of a letter of the Buyer to the Greek Police dated 1 October 2003, in the ballistic Station of PYRKAL, the Material which was used for the text was the same as the Material that was used for the manufacturing of the vest which was penetrated.

1.7 Additional test on 30 October 2002

On 30 October 2002, while representatives of the Buyer were present, 80 shots were effected with an MP5 gun, from five meters distance and with the speed of 426+/-25m/s: these shots did not cause any unusual behavior of the Material in order to render it suspicious for the causing of failure.

1.8 Results of Failure Analysis

Having evaluated the ballistic tests with Dyneema SB 31 Material (see paragraph 1.5 and 1.7 above), the Failure Analysis dated 10 March 2003 concluded that from the results of the ballistic tests, one could not attribute the failure of the bullet-proof vest to a systematic failure of the bullet-proof Material Dyneema SB 31 that was used. However, since the failure occurred at the imaginary line of overlapping [of the two chest covers] of the specific vest, in order to test the design of the vest, a model was used in order to check the effect of the design factor (that is with chest overlapping 36 sheets of SB31 [40cmX40cm] and chest overlapping 36 sheets of SB31 [20cmX40cm]). In five shots that took place on 1 November 2002 in the PYRKAL Ballistic Station with the MP5 gun, from five meters at a speed of 426+/-15m/s, one penetration appeared. The Failure Analysis of 10 March 2003, among others, concluded that this penetration was a strong indication of bad operation of the bullet-proof Material Dyneema SB31 in the specific design [of the vest]. In addition, it concluded, that the tendency of the Material in the event of unidirectional structure of the SB31 Material when the chests are overlapping, was clearly larger in comparison with the case of homogeneous substratum. Finally, that the resistance of the chest to penetration was relative to the resistance of the fibres, which in the event of non-homogenous substratum was more distressed and as a result an increased possibility of penetration appeared. It was further noted in the judgment that at those shots, the following ammunition was used, i.e., 9X9mm NATO of the Canadian company IVI (LOT 304-I.V.I.-79), with a nominal mass of bullet 7.5g. (115 grains) and not the ammunition provided by annex B (part of the operating test of the bullet-proof vests) of the EBO Supply Agreement (see paragraph 1.1 above). There was no study over the analysis of the factor of the ammunition behavior. In addition, during the test there were high speeds V2 (average of 434m/s), in comparison to the requirements of the specification (426 m/s), while four out of the counted during test speeds V2 (out of 18), were exceeding the limit set by the specification (441m/s). At the end, the Failure Analysis suggested aramidic material (Kevlar, Twaron) as a remedy for the improvement of the bullet-proofing operation of the Material [in comparison to the Dyneema SB31 structure], which is available in fabric form, due to the fact that in tests effected on 6 December 2002 at the ballistic station of PYRKAL with an MP5 gun, from a distance of five meters and speed of 426+/- m/s, with ten shots at sample of 40cmX40cm Twaron CT 709wrt (29 Layers) placed on top of sample 40cmX20cm SB31, it appeared that there was no penetration and that the bullets were deformed regularly and symmetrically, which constituted a strong indication that the causes which resulted in failure did not exist any more.

1.9 Further exchange of correspondence - new test on 4 September 2003 - further tests by the Seller in the Netherlands

By a letter dated 18 November 2002, the Seller offered to assist the Buyer and suggest a solution to the design problem of the bullet-proof vest and asked the Buyer to send to it a sample vest of the ones used in the ballistic test of September 2002 and asked for payment of the outstanding invoices no. 13196/30 May 2002, 13439/19 July 2002 and 13440/19 July 2002 for an amount equal to 438,771.58. The Buyer did not answer this letter.

By letter dated 6 December 2002, the Seller informed the Buyer that it requested a third company to manufacture, and the latter manufactured on its behalf, the specific model and had found alternative solutions for the problem faced in connection with the vest that had been produced by the Buyer for the Greek Police. The Buyer did not answer this letter.

In the absence of any communication by the Buyer, the Seller by a letter dated 27 January 2003 to EBO SA and the Buyer demanded that the Buyer immediately take over the remaining 30,000 linear meters of Material following discharge of the outstanding amount of 438,771.58 as well as the triggering of the option of 115,000 square meters of Dyneema SB 31.

By a facsimile message dated 11 February 2003, the Buyer informed the Seller that the Failure Analysis showed that there was a problem arising from the combination of the Material used for the specific type of bullet-proof vest (with zip), of which the Buyer was not informed, since it did not occur in the past to the Seller; thus the Buyer negotiated with the Greek Ministry of Defense in order to make a final decision on the 7,500 vests that had already been delivered to the Greek Police which was the reason for the delay in the payment of the outstanding price; the Buyer further requested the Seller to supply the 30,000 linear meters of DSM Dyneema SB-31 to a third buyer, since this quantity was not necessary for the performance of the contract.

Then, by a letter to the Buyer dated 3 March 2003, the Seller acknowledged the problem in the design of the material Dyneema UDX/SB31 with the specific design of some bullet-proof vests; this was not new to the Seller and this was confirmed in the tests that took place on 30 October and 1 November 2002, which was confirmed that it was not the material but the design of the specific type of vests and the type of specific ammunition which was used that caused the problem; the Seller confirmed that it had a suspicion that the design of the vest and the type of ammunition used may have a decisive effect on the bullet-proof material even if the latter is of the best quality, and once again confirmed that the material delivered to the Buyer fully satisfied the specifications set out for this material; then the Seller made clear that there was no interconnection between the quality of the material and the performance of the bullet-proof vests, it expressed its disappointment since the Buyer did not liaise in order to resolve the problem by providing a defective vest to the Seller and the ammunition used in order for the Seller to make a test and asked the Buyer to pay the three outstanding invoices for an aggregate of 438,771.58 and declared that the Seller would not accept the cancellation of the delivery of the 30,000 linear meters of Dyneema UDX-SB31 for which the Buyer had placed an order.

By a letter to the Buyer dated 16 April 2003, the Seller requested payment of the outstanding amount of 438,771.58 and informed the Buyer that it had found alternative solutions for the problem in connection with the bullet-proof vest. The Buyer did not answer.

From a number of letters from the Seller dated 1, 17 and 21 October 2003 to the Greek Police and the Buyer, it results that, on 4 September 2003, new tests were conducted (in the presence of representatives of the Seller). During those tests, shots were made over material of the same lot along the space that is created at the point where the two front parts of the vest are united. The shots were effected on a number of samples with no problem. Then, an improving material was added with further positive results. Then a representative of the Greek Police asked the Seller's representative to deliver samples of this material in order to be placed in a full vest to further check its operability. The Seller delivered a sample of this improving material and provided information as to its characteristics (that is 24 gr. weight, 0.33 price per vest) and indicated the manner of use which was simple and practical. However, the Buyer did not manufacture samples with the improving material that the Buyer delivered in order to exhibit such samples to the Greek Police; on the opposite, it invited the Greek Police to participate in tests with another type of material (aramidic fibres), which was rejected at the selection stage (international tender process; see paragraph 1.1 above).

By a letter to the Greek Police dated 15 September 2003, the Buyer informed the Greek Police that it proceeded to a number of tests at its own premises as well as in the TNO Prins Maurits Laboratories (Netherlands, officially certified, test level) in order to determine the result of the addition of the improving material over a bullet-proof vest manufactured by the Buyer. Technique v50 was used. From this letter together with other letters of the Seller to the Greek Police and the Buyer dated 1, 17 and 21 October 2003 and a witness statement under oath dated 5 November 2007 of Mr. Johan Kunst, it results that the Buyer effected tests at the above mentioned locations with more than 300 shots and with stronger ammunitions, over vests of the specific model that was manufactured and in particular along the gap which existed at the point that the two front parts of the vest are unified, and that it did not find any problem.

By a letter to the Seller dated 14 October 2003, the Buyer acknowledged that the outstanding amount owed to the Seller was 237,186.45 out of which an amount equal to 5 DM per kgr should be deducted together with any damage that the Buyer would suffer from the repair of the 6,900 vests with zip, due to the relevant compensation claim of the Greek Police.

By a letter to the Buyer dated 17 and 21 October 2003. the Seller protested once again for the non-payment of the outstanding invoices by the Buyer and the non-acceptance of the last installment pursuant to the Sale Contract and made reference to the tests that took place and at which no penetration had occurred, and no problem had appeared.

1.10 Conclusion by the Buyer of an agreement with a new supplier

On 27 October 2003, the Buyer eventually concluded an agreement with a Greek Société Anonyme [the "New Supplier"] (which had a contract with the foreign corporation Dupont Nemours which had the patents and commercial rights for aramidic fibres). This was a cooperation agreement for the development-production-sale of individual protection material with bullet-proof abilities based on Kevlar fibers with a protection period of five years setting as first priority the cooperation for the manufacturing of 9,442 vests for the Greek Police [the "New Supplier Contract"]. Accordingly, although in the Failure Analysis (see paragraph 1.8 above) it was suggested to replace the vest chest with a Dyneema SB31 (36 sheets) material with a vest made of Twaron CT709wrt (29 sheets), the Buyer proceeded with the purchase of a different material, that is, aramidic fibres (Kevlar), from another manufacturer, although it had tested and rejected the latter material at the tests that took place in Granfield University for the selection of the material at the international tender stage (see paragraph 1.1 above).

Under contract no. 02/4 November 2003 between the Greek Ministry of Defense and EBO SA, the EBO Supply Agreement for the supply of material to the Greek Army was amended and aramidic material was described as the main bullet-proof material and replaced the Dyneem UD SB 31. Under the amended EBO Supply Agreement, the New Supplier was named as supplier and new delivery times for the material were set.

In January 2004. an agreement was concluded between an entity that succeeded EBO SA and Eletromichaniki Kimis EPE (i.e., the Buyer).

1.11 Final exchange of correspondence

On 18 March 2004, the Buyer send a facsimile message to the Seller by means of which:

   -    It repeated that the Greek Police did not accept the Seller's Material, due to the penetration of the bullet-proof vest at the tests that took place on 20 September 2002 (see paragraph 1.5 above), and the Buyer demanded the repair of all vests that the Seller had delivered to the Buyer;
 
   -    The Buyer further deducted the amount of 202,722 Euro as expenses for the repair of the vests and set-off the advance payment and the expenses for the tests;
 
   -    The Buyer finally concluded that it owed to the Seller a remaining amount equal to 34,464.45 Euro and it offered to pay this amount (which eventually it did not).

Finally on 21 April 2004, the Seller by means of a letter to the Buyer, denied any claim of the Buyer, and declared that if the Buyer did not discharge the outstanding amount of 438,771.58 and did not take over the remaining 29,871 linear meters of the Dyneema SB 31 material corresponding to the amount of 484,770.48 Euros out of which it had prepaid the amount of 194,914.26 Euro, it would recourse to justice.

2. RECITAL OF PRINCIPLES OF LAW [excerpt from the judgment, translated by the Editor]

2.1 Jurisdictional matters

2.1.1 General comments on Regulation EC 44/2001

"Since 1 March 2002, Regulation EC 44/2001 [on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters] has applied directly for the international jurisdiction between the Member States of the European Union, with the exception of Denmark, pursuant to Article 76, which refers to the "Recognition and Enforcement of Judgments in Civil and Commercial Matters", replacing, pursuant to its Article 68, the Brussels Convention of 27 July 1968 "On International Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters", which was ratified by Law 1814/11 November 1988 and entered into effect on 1 April 1989. Pursuant to Article 1 of this Regulation, it applies to civil and commercial matters whatever the nature of the court or tribunal, while it shall not extend, in particular, to revenue, customs or administrative matters. Furthermore, it shall not apply to the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession. The Regulation supersedes any other similar provision of domestic law to the contrary, even if it is a provision of the Constitution. For the application of this Regulation, it is necessary that the dispute show elements of foreign character. The [foreign] element is present: (a) If a litigant is domiciled in a certain State and the other in a different Member State or in a non-Member State; and (b) if the plaintiff and the defendant are domiciled in the same State but the case is associated with another Member State or a non-Member State (e.g., the registered office of the legal entity). If the defendant is not domiciled in a Member State, then the Regulation does not apply, unless one of the exclusive jurisdictional bases of Article 22 of the Regulation is met (property, execution, etc.), or extension of jurisdiction."

2.1.2 Jurisdiction in contract disputes

"The domicile of the plaintiff does not legally affect the case, unless the establishment of international jurisdiction depends thereon (V. Vathrakokoilis, Interpretation of Civil Code [...], Volume 8th, Supplementary Volume, Article 3, notes 1 to 7, pp. 30-31). In particular, pursuant to the provisions of Article 2 1 and Article 5 1 of the above Regulation:

"Subject to this Regulation, persons domiciled in a Member State may, whatever their nationality, be sued in the courts of that Member State" and "A person domiciled in a Member State may be sued in another Member State: (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided; (c) if subparagraph (b) does not apply, then subparagraph (a) applies."

In addition, pursuant to Article 60 of the Regulation:

"For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its (a) statutory seat, or (b) central administration, or (c) principal place of business."

Based on the above provisions, persons domiciled in or having their place of business in a Contracting State may be regularly sued before the courts of that State. However, in the event of disputes under contract which must be deemed as a self-existent concept that must be interpreted, for the application of this Regulation, with reference mainly to the system and the purposes thereof, so as to ensure full effect of the Regulation (EC Law [...] 22 March 1983, Peters/Znaw 34/1982, Collection of Case Law [...] 1983.987), they may be sued before the court of the place where the obligation was performed or must be performed. Therefore, pursuant to Article 5 case (1) of the Regulation, a crucial element for the establishment of international jurisdiction is the place where the obligation was performed and not the place where the contract was concluded, as provided for by Article 33 of the [Greek] Code of Civil Procedure (Court of Appeals of Athens [...] 5610/1999, Greek Justice [...] 43, 1455; Court of Appeals of Thessalonica [...] 2253/1994, Armenopoulos [...] 1995, 204; Multi-Member First Instance Court of Athens [...] 680/2007, Applications of Civil Law (EAK) 2008, 447, Shipping Law Review [...] 2006.283). The place where the obligation was performed or must be performed is determined, in accordance with the law governing the under judgment obligation, pursuant to the rules of the private international law [of the court] before which the case is judged (EC Law [...] 28 September 1999, GIE Concorde/Panjan C-440/1997, Collection of Case Law [...] 1999.I.6307, Commercial Law Review [...] 2000.183 et seq., remarks by P. Giannopoulos, Greek Justice [...] 2000.565 et seq., Commercial Law Review [...] 2000.415, EC Law [...] 6 October 1976; Tessili/Dunlop 12/1976, Collection of Case Law [...] 1976.1473). For the determination of the place of performance, the obligation plays a major part, which corresponds to the contractual claim that constitutes the basis of the subject of the trial (EC Law [...] 6 October 1976 De bloos/Bouyer, 14/1976, Collection of Case Law [...] 1976.1497)."

2.1.3 Juridiction in matters relating to tort or quasi tort

"Furthermore, as far as obligations arising from tort are concerned, Article 5 3 of the Regulation, defines as the competent court, the court located in the place where the damaging event took place or is expected to take place, i.e., not only the place where the damage occurred but also the place where the event that constitutes the cause of the damage, occurred (EC Law [...] 30 November 1976, Bier/Mines de Potasse d'Alsace, 21/1976, Collection of Case Law [...] 1976.1735). The meaning of obligation arising from tort or from quasi tort is determined with autonomous ([European] community) criteria and includes any claim, by which a liability issue of the defendant is raised and does not concern "contract disputes." The court which is considered to be competent, by virtue of Article 5 3 of the Regulation, to judge on the chapter of an action, which is grounded in an obligation arising from tort, is not competent to judge on the other grounds of the same action which are not based on an obligation arising from tort but on contract or unjustified enrichment (EC Law [...] 27 September 1988, Kalfelis/Schroder 189.1987, Collection of Case Law [...] 1986.5565). The place where the damage occurred is the place where the event resulting to liability from tort or quasi tort produced its damaging results directly against the damaged party (EC Law [...] Dumez France/Hessische Landesbank, C-220/1988, Collection of Case Law [...] 1990, I-49 et seq. EC Law [...] 30 November 1976; Bier/Mines de Potasse d'Alsace, 21/1976, Collection of Case Law [...] 1976, 1735; Supreme Court [...] 1551/2003, Greek Justice [...] 2004, 422; Court of Appeals of Piraeus [...] 347/2000, Chronicles of Private Law [...] 2001, 61; Multi-Member First Instance Court of Piraeus [...] 2169/1997, Armenopoulos [...] 1998, 1515; Single-Member First Instance Court of Drama [...] 34/2008, Civil Procedure Review [...] 2008.550)."

2.1.4 Agreements conferring jurisdiction on the courts of a Member State: prorogation of jurisdiction

"Pursuant to the provision of Article 23 1 of the Regulation:

'If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing or (b) in a form which accords with practices which the parties have established between themselves or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.'

It is concluded from this provision that a valid agreement for prorogation [of jurisdiction] renders the said court exclusively competent for the case. The meaning of [the word] agreement between the parties for the prorogation of international jurisdiction is interpreted autonomously (EC Law [...] 14 December 1976, Estasis Salloti/Ruwa, 24/1976, Collection of Case Law [...] 1976.1831). In case of agreement for prorogation for future disputes, the "particular legal relationship", in view of which the said agreement is concluded, must be expressly determined, and the agreement for prorogation applies only for disputes arising from that relationship. However, if the prorogation clause specifies the legal relationship for which it is agreed upon, it is not necessary to mention the individual disputes to which it applies (Keramefs/Kremlis/Tagaras). The Brussels Convention for International Jurisdiction and Enforcement of Judgments is in force in Greece, interpreted by Article, section 22, 23 p. 151). It lies, however, with the National Court to interpret the prorogation agreement, in order to determine the disputes that will be subjected to the particular legal relationship (EC Law [...] 9 November 1978, Meeth/Glacetal, 23/1978, Collection of Case Law [...] 1978.2133). If the contrary is not concluded from the agreement, claims in tort are initially subjected to the concept of the legal relationship for the contract, in particular when the tort also constitutes breach of contractual obligations (Keramefs, Applicable Law, subjective limits and results for agreement on the extension of international jurisdiction of foreign courts in case of simple passive joint action, Legal Opinion, Legal Studies II, 1994, pp. 550 et seq., mainly 556-557). Article 24 of the Regulation applies even if the litigants contractually determined the competent court, pursuant to Article 23 of the Regulation. That is, the tacit prorogation confers international jurisdiction, even if an express prorogation has already been established (EC Law [...] 24 June 1981, Elefanten Schuh/Jacqmain, 150/1980, Collection of Case Law [...] 1981.1671)."

2.1.5 Jurisdiction of the court where the defendant enters an appearance

"Finally, Article 24 of the Regulation provides:

'Apart from jurisdiction which derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.'

This provision regulates the form of the prorogation of international jurisdiction which consists only in the fact that the defendant enters an appearance before the Court in which the action against him has been filed, without raising an objection for lack of international jurisdiction. Whether this court would have or would not have international jurisdiction under other provisions of the Regulation, is not a matter of concern for the application of Article 24 of the Regulation. If the defendant does not raise an objection for the lack of international jurisdiction, then the judge is obliged to proceed with the trial, without examining on which provisions or actual facts did the defendant rely in order to file his action before this court, unless there is a case of application of one of the jurisdictional basis of Article 22 of this Regulation, whence the judge is obliged to ex officio verify the lack of international jurisdiction, even if the defendant does not raise the relevant objection (EC Law [...] 7 March 1985, Spitzley/Sommer 48/1984, Collection of Case Law [...] 1985.787; Court of Appeals of Piraeus [...] 545/2006, Piraeus Case Law [...] 2006/440, Armenopoulos [...] 2008.437; Court of Appeals of Piraeus [...] 854/2006, Shipping Law Review [...] 2007/107; Court of Appeals of Piraeus [...] 1105/2006, Companies and Undertakings Law [...] 2007.412, Shipping Law Review [...] 2007/185; Keramefs/Kremlis/Tagaras, as above, note 1, 2, p. 170)."

2.2 Matters in connection with the CISG

2.2.1 General comments

"The Convention on Contracts for the International Sale of Goods of Vienna (CISG), which was promulgated in Vienna on 11 April 1980, was put into effect by virtue of Law 2543/1997 (Off. Gazette A, 227/11 November 1997) for the Sale of Goods. It regulates the conclusion of international sales contracts and the rights and obligations of the parties thereunder. This Convention falls into the category of international conventions that create law and is a directly enforceable international convention. Therefore, it contains no rules of private international law (conflict rules), but directly enforceable substantive rules, which supersede the respective provisions of national law, pursuant to the provision of Article 28 1 of the Greek Constitution (Court of Appeals of Lamia [...] 63/2006, Commercial Law Survey [...] 2006.1106; Single-Member First Instance Court of Thessalonica [...] 16319/2007, Chronicles of Private Law [...] 2008.147; Single-Member First Instance Court of Thessalonica [...] 43945/2007, Chronicles of Private Law [...] 2008.52, Armenopoulos [...] 2008.942; P. Kornilakis, Special Contractual Law, Volume I, ed. 2002, pp. 108 seq.; G. Nikolaidis, The International Sale of Goods pursuant to the Vienna Convention, ed. 2000, pp. 8 et seq.).

"Thus, within the legal systems of States which have adopted the CISG and whose number reaches 73 (D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraph 13) among which the Netherlands are included, in which the Convention has been in effect since 1 January 1992, the international sales of goods that fall within its sphere of application are governed by its provisions, while all other sales are governed by the provisions of national law to which the rules of private international law of the forum refer (P. Kornilakis as above, p. 109)."

2.2.2 Autonomous interpretation of the CISG

"The interpretation of the CISG by national courts, by order of the provision of Article 7(1) of the CISG, must be made "autonomously", through its uniqueness and originality thereof as a text, i.e., through the system of its provisions and general principles and free of any ethnocentric approaches, "unique" terms of domestic law, and [free] of methods that usually follow for the interpretation of domestic provisions, since otherwise that may result in the application of institutions and provisions of domestic laws and furthermore, in undesired lack of uniformity in its application (P. Giannopoulos, Principles of Interpretation of the Convention of the United Nations for the International Sale of Goods (Vienna 1980), Armenopoulos Anniversary [...] 2000.83 et seq.; D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraphs 104 et seq.; D. Flambouras, Recent case law of Greek courts on the Vienna Convention of 1980 on the International Sale of Goods - Issues of Private International Law, in Private International Law of Commerce, 2008, p. 517)."

2.2.3 Autonomy of the parties under the CISG; Selection by the parties of the law of a country that has adopted the CISG

"The CISG does not contain any provisions of compulsory law. On the contrary, the fundamental principle of private autonomy is confirmed therein, i.e., it allows the parties to agree upon provisions which derogate from the provisions of the Convention or even to completely exclude its application with express and/or tacit agreement ("opting out" clause) (Article 6 of the CISG). It is understood that, when no agreement to the contrary exists as above, the provisions of the CISG apply (Court of Appeals of Lamia [...] 63/2006, as above; P. Kornilakis, as above, p. 58; G. Nikolaides, The International Sale of Goods Pursuant to the Vienna Convention, ed. 2000, pp. 51-58; D. Flambouras/G. Petrocheilos, The Vienna Convention for the International Sale of Goods as interpreted by Arbitral Tribunals, [...] Commercial Law Review () 2000, 4-9, 13). Where the parties have selected the law of a country to be the applicable law, then the provisions of CISG apply, to the extent that the CISG has been adopted by that country (D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraphs 83 et seq., with further references to case law of foreign courts)."

2.2.4 Application of the CISG: Subjective sphere of application, Objective sphere of application, Territorial sphere of application, Temporal sphere of application

"In order for the provisions of the CISG to apply to a specific sales contract, the following conditions must occur:

      (a) The transaction must fall within the subjective sphere of application of the Convention, i.e., certain conditions which concern the parties or one of the parties must be met (subjective conditions of application). In particular (i) the parties must have their places of business in different States, i.e., there must be an international sale of goods involved, within the meaning of the Convention (CISG Article 1(1) and the exception of paragraph (2) of the same Article must not apply; and (ii) goods must not be purchased for personal, family or household use, i.e., there is not a sale to consumers, within the meaning of the Convention (CISG Article 2(a)).

      (b) The transaction must fall within the objective sphere of application of the Convention, i.e., certain conditions which concern the form and the object of the contract concluded must be met (objective conditions of application). In particular (i) it must be a sales contract and none of the exceptions provided for in the provision of Article 3 of the Convention applies; and (ii) it must concern goods and none of the exceptions provided for in Article 2 paragraphs (b) through (f) of the Convention applies.

      (c) The transaction must fall within the territorial sphere of application of the Convention, i.e., certain conditions concerning the territory to which the transaction must be connected must be met (territorial conditions of application). In particular (i) the States in which the contracting parties have their places of business must be Contracting States (CISG Article 1(1)(a); or (ii) based on the rules of the private international law of the forum, the applicable law in the sales contract will be the law of a Contracting State (CISG Article 1(1)(b).

      (d) The transaction must fall within the temporal sphere of application of the Convention, i.e., certain conditions concerning the time at which the contract was concluded must be met (temporal conditions of application). In particular, the sales contract in question must have been concluded after the date on which the Convention entered into effect, pursuant to the provisions of Article 99 and Article 100 thereof (i) in the Contracting States in which the parties have their places of business (CISG Article 1(1)(a)); or (ii) the Contracting State, the applicable law of which applies to the specific sales contract, pursuant to the rules of the private international law of the forum (CISG Article 1(1)(b).

If in a sales contract the above objective, subjective, territorial and temporal conditions are satisfied, then the CISG applies, unless the parties, by mutual agreement, excluded in whole or in part the Convention, based on the compliant nature of its provisions (CISG, Article 6) (D. Flambouras "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraphs 25-26)."

2.2.5 Issues governed by the CISG: General description of the seller's and buyer's obligations under the CISG

As provided in Article 4, the CISG regulates the formation of the contract of sale, the rights and obligations of the parties, and the consequences of its breach. In particular, the obligations of the parties are regulated in the CISG in a simple manner. Thus, the seller, not only in the sale of generic goods but also in the sale of kind, has the main contractual obligation: (a) to deliver the goods; (b) to transfer the ownership of the goods; and (c) to hand over to the buyer the documents that relate to the goods (CISG Article 30). The buyer, on the other hand, has the contractual obligation to pay the contractual price to the seller and in particular at the seller's place of business (CISG Article 57(1)(a)) and within the time set out in the sales contract or deriving from it and it is the moment the goods or supporting documents thereof are made available to him (CISG Article 58(1) and Article 59); and (c) in contrast to the regulation of the Civil Code, to take delivery of the goods (CISG Article 60), a fact that constitutes another important innovation of the Convention."

2.2.6 Issues not governed by the CISG; Methodology of CISG article 7(2); General principles; Set-off / Statutory limitation

"Furthermore, the reference of the phrase "in particular" in Article 4 of the Convention shows that the reference made is indicative. Therefore, apart from the issues referred to in this provision, there is a series of other issues beyond the sphere of application of the Vienna Convention. Consequently, if a gap exists for an issue in the Convention and that issue cannot be regulated based on a general principle of the Convention, then, for this issue only, an external gap is deemed to exist and in accordance with the provision of Article 7(2) of the Convention, the interpreter, in order to regulate that issue, must have recourse to the national law to which the rules of the private international law of the forum refer (Court of Appeals of Thessalonica [...] 223/2006, Commercial Law Survey [...] 2007.168; Single-Member First Instance Court of Thessalonica [...] 43945/2007 as above; Single-Member First Instance Court of Larisa [...] 165/2005, published in NOMOS Legal Database; D. Flambouras "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraphs 91a, 97a, 97b, 111-113 and 114-116). Thus, among other cases that are beyond the sphere of application of the CISG (external gaps), regulated by the rules of the national law to which the rules of the private international law of the forum refer to are set-off (Single-Member First Instance Court of Thessalonica [...] 43945/2007 as above) and statutory limitation (Single-Member First Instance Court of Larisa [...] 165/2005, published in NOMOS Legal Database). In particular, in the latter case, when the Greek Law is applicable and more specifically the provision of Article 554 of the Civil Code prior to its amendment with Law 3043/2002, which provided that the statutory limitation for movable goods had a term of six months and therefore it was shorter than the two-year [notice] period provided for by Article 39(2) of the CISG, it must be accepted that for sales falling within the sphere of application of the CISG, the period of six months statutory limitation provided for by Article 554 of the Civil Code commences not from the handing over of the goods to the buyer, but as of the notification of the buyer to the seller provided for by Article 39(1) of the CISG (Single-Member First Instance Court of Larisa [...] 165/2005, as above; cf. A. Valtoudis, For the problem of concurrence of liability for real defects pursuant to the Vienna Convention (CISG) with the national non-contractual law, see Armenopoulos [...] 1999, 327, 341)."

2.2.7 Liability for non-performance under the CISG; Exemptions from liability in the CISG

"The CISG adopts the idea of the unified form on non-performance, that is, a basic "actuality" is introduced, a basic "form in accordance with the law", a uniform and general reason for liability, where the meaning of "contractual breach" is dominant. The term implies any breach of any form and seriousness of any main or ancillary obligation of the seller or the buyer, i.e., any case of irregular development of an obligation, on the promisor's part. In other words, the term "contractual breach" suggests all other cases, which, within the framework of the [Greek] Civil Code, would either be characterized as inability to perform or delay by the promisor or defective performance, or they would incur the application of the provisions of the special contractual law of the Civil Code, such as in case of a legal or real defect or absence of agreed quality (Court of Appeals of Lamia [...] 63/2006, as above; Multi-Member First Instance Court of Thessalonica [...] 22513/2003, Armenopoulos [...] 2003.1802; Single-Member First Instance Court of Thessalonica [...] 14953/2003, published in NOMOS Legal Database; A. Georgiadis Contractual law - Special Part, Vol. I 2004, p. 160; P. Kornilakis, as above pp. 129-130; M. Stathopoulos, The Convention of United Nations for the International Sale of Goods and the Civil Code Law: The normative model for the unification of contractual breaches, Commercial Law Survey [...] 1998.19 seq.; D. Flambouras "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraphs 350-352).

Furthermore, in order for liability to arise, it is not important if fault exists or not, i.e., the liability of the obligor is "objective" and it is connected only to the (objective) fact of the contractual breach. Therefore, pursuant to the CISG, the reason for the generation of liability is the breach of the contractual obligation itself and not the fault of the breaching party. In this manner, the CISG adopted the Anglo-Saxon originated perception, pursuant to which, upon the conclusion of the contract, the promisor guarantees the due, from any aspect, performance of his obligation. The only possibilities for the release of the breaching party are: (a) under the conditions of Article 79 of the CISG, release from his liability for damages in cases of force majeure as described in accordance with the objective theory; and (b) in general from his liability, under the conditions of CISG Article 25, i.e., when the promisor did not foresee as a consequence of the beach of contract, the damage the counter-party suffers which practically deprives him of anything he was entitled to expect under the contract and a reasonable person of the same kind in the same circumstances would also not have foreseen it. Therefore, the promisor is liable also for all fortuitous events, in the strict sense of the term (therefore objectively) for which he is not liable under the Civil Code, and is released only in the cases of force majeure, which is understood based on the objective theory (Court of Appeals of Lamia) [...] 63/2006, as above, P. Papanikolaou/ A. Karabatzos. The New Law on the Seller's Liability, 2003, pp. 278-279, M. Stathopoulos, as above, pp. 1096-1097; Ath. Pouliadis, as above, Commercial Law Survey [...] 1998.22 et seq. and mainly 26-28; G. Nikolaidis, The International Sale of Goods pursuant to the Vienna Convention, ed. 2000, pp. 104-105 and 112; F. Doris, Comparative Review of the Choices of Systematic Organizing of the Regulations for the Sale of Goods in the Civil Code and in the Vienna Convention -- critical observations, in F. Doris Greek / Chelidonis [...], Issues on the Application of the Vienna Convention for International Sales of Goods, 2004, pp. 155-180, 174; D. Flambouras "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraphs 350-352)."

2.2.8 Remedies for non-performance under the CISG

"In the CISG, the consequences of any contractual breach are regulated in a basically uniform manner, not only for the seller but also for the buyer. Thus:

      (1) The counterparty of the breaching party is entitled at first, to claim the full and due performance of the obligation breached (CISG Articles 46(1) and 62), provided that the said performance is physically and legally possible. Within the said context and in case of handing over of an item which does not conform to the requirements of the contract, the buyer is entitled to claim repair or removal of the defect (CISG Article 46(3) or the replacement of the item (CISG Article 46(2), provided, of course, that in the latter case it concerns the sale of generic goods.

      (2) The second remedy granted to the promisee is to claim damages (CISG Article 45(1)(b), Article 61(1)(b) and Articles 74-77) and in particular accumulatively with other legal remedies he may have exercised (CISG Article 45(2) and Article 61(2).

      (3) Finally, the promisee is entitled to declare the contract avoided (CISG Article 49 and 64), a remedy into which the [domestic remedy of] reversion is merged and which includes the specially regulated remedy of the buyer for the reduction of the [contractual] price (CISG Article 50) (Court of Appeals of Lamia [...] 63/2006, as above."

2.2.9 Seller's obligation under the CISG to deliver goods conforming to the contract

"In particular, the primary contractual obligation of the seller is to hand over to the buyer goods which are of the quantity, quality and description and conform to the requirements of the contract (CISG Article 35(1). In parallel, the subjective (CISG Article 35(2)(b) and (c)) and objective criteria, respectively, are set out (CISG Article 35(2)(a) and (d)), which, within the framework of the Civil Code are used for the semantic determination of the real defects, while it is also possible to agree upon qualities, whose possible lack would not had been [otherwise] considered as a lack of conformity of the goods to the requirements of the contract. In other words, the seller has a main contractual obligation to hand over the goods free of defects, actual or legal, and equipped with the reasonably expected (and not compulsory "agreed upon") qualities (Multi-Member First Instance Court of Thessalonica [...] 22513/2003, as above).

"Respectively, a form of breach of the contractual obligations of the seller is also the handing over to the buyer of defective goods or, although not defective, of such a kind that they do not conform to the requirements of the contract as, e.g., when the goods handed over do not have the qualities agreed upon. Nevertheless, the parties, pursuant to CISG Article 6, may agree upon when the goods do conform to the requirements of the contract, and the content of the said agreement shall be determined by the interpretation of the contract and the declarations of the parties (CISG Article 8). If no such agreement exists, the extent for the conformity may derive from any usages to which the parties have agreed and by any practices which they have established between themselves (CISG Article 9(1), otherwise by the usages of international trade, which the parties knew or ought to have known and which the parties are presumed to have applied to their mutual sales contract. If none of the above applies, then the conformity of the goods to the contract shall be judged based on the above criteria set out in the provisions of CISG Article 35(2) (D. Flambouras "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraph 228, with reference to a judgment law of a foreign court."

2.2.10 Buyer's remedies under the CISG if goods do not conform to the contract; Buyer's duties under CISG 38, 39 (reasonable period); Burden of proof

"If goods do not conform to the requirements of the contract, the buyer has the following legal remedies:

      (a) If the non-conformity constitutes a fundamental breach (CISG Article 25), to claim the replacement of the non-conforming goods with others (CISG Article 45(1)(a) and Article 46(2) (specific performance, replacement);

      (b) If the non-conformity does not constitute a fundamental breach, to request the seller to remedy the non-conformity with repair (CISG Article 45(1)(a) and Article 46(3), (specific performance, replacement);

      (c) If the non-conformity does not constitute a fundamental breach, to request the reduction of the price (CISG Article 45(1)(a) and Article 50) (reduction of price);

      (d) If the non-conformity constitutes a fundamental breach (CISG Article 25), the buyer may declare the contract avoided (CISG Article 45(1)(a) and Article 49)(1)(a); and/or

      (e) To claim damages. The buyer is not deprived of the remedy to claim damages, only because he made use of any other legal remedies (CISG Article 45(1)(b), 45(2) and Articles 74-77) (damages) (Multi-Member First Instance Court of Thessalonica [...] 22513/2003, as above).

The legal remedies of the buyer for the non-conformity of the goods with the requirements of the contract (CISG Article 35) may be exercised only if the buyer has previously complied with the duties provided for by the CISG, i.e., (a) Examination of the goods within as short a period as is practicable in the circumstances (CISG Article 38(1); and (b) notification to the seller of the lack of conformity, with accurate specification of the nature of the lack, within a "reasonable time" from the moment the buyer discovered or ought to have discovered the lack of conformity (CISG Article 39(1) (D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraph 328, with references to case law of foreign courts) and ,in any case, within a period of two years from the date on which the goods were actually delivered to him (CISG Article 39(2). Nevertheless, even if the buyer does not notify the seller of the lack of conformity within a reasonable period (CISG Article 39(1), to the extent there is a "reasonable excuse" for the failure to notify, he reserves the following alternative remedies: (a) to request reduction of the price in accordance with CISG Article 50; or (b) to claim damages, excluding loss of profit (CISG Article 44).

After the buyer takes over the goods (CISG Article 60(b)), if a matter of non-conformity arises, he is the one who must prove that the goods did not correspond to the contract at the time of transfer of risk (CISG Article 36(1) and Articles 67-69). Nevertheless, if the buyer, following receipt of the goods, examines the goods within as short a period as is practicable in the circumstances (CISG Article 38(1), discovers a non-conformity [and gives notice to the seller] specifying the nature of the lack of conformity, events for which he bears the burden of proof, then, the burden of proof is shifted and it is for the seller to prove that at the time of transfer of risk the goods conformed to the contract of sale (D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraphs 245-246, with references to case law of foreign courts).

2.2.11 Remedy of damages under CISG

"The claim for damages, which may be exercised in the aggregate with all other legal remedies (CISG Article 45(2) for the buyer, 61(2) for the seller and 81(1) in case the contract is declared avoided) is always monetary, and it constitutes the positive interest, i.e., everything the damaged party would have had if the contract was performed and includes the positive loss and loss of profits (CISG Article 74, sentence one). Its extent is determined by the provision of CISG Article 74. sentence two, which states that:

"Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known [, as a possible consequence of the breach of contract]."

Therefore, in order for the damage that the promisee of the obligation suffered due to the contractual breach of the promisor to be restored, the breaching promisor should have foreseen it (subjective foreseeability) or ought to have foreseen it (objective foreseeability) as a possible result of the contractual breach at the time the contract was concluded.

In order to judge if there is subjective foreseeability of the promisor, subjective factors are taken into account which concern the promisor, such as his knowledge at the time the contract was concluded of the relative risk that caused the damage, the specialized skills or knowledge he has for the specific type of trade, any information in connection with the existence of the risk provided [to the promisor] by the promissee (D. Flambouras/G. Petrocheilos, The Vienna Convention for the International Sale of Goods as Interpreted by Arbitral Tribunals, Commercial Law Review [...] 2000.53). If it is not concluded that the promisor had foreseen the damage, then it is examined if he ought to have foreseen the damage. The criterion for the affirmation of subjective foreseeability is the ability to foresee of the "ideal promisor", i.e., of the prudent and "reasonable" representative of the circle of transactions in which the breaching promisor belongs, also in the light of the purpose of the specific sales contract (Court of Appeals of Lamia [...] 632/2006, as above; cf. Multi-Member First Instance Court of Thessalonica [...] 22513/2003 as above; P. Kornilakis, as above, p. 138; D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraphs 418 et seq.). The object of the foreseeability is the nature [type] and extent of the damage as a possible consequence of the contractual breach, but not the contractual breach itself. Therefore, the breaching promisor is not liable for just any damage, instead his liability under CISG is limited to the foreseeable damage, even if the promisor has intentionally breached his contractual obligations. Thus, non-material damage is not compensated, as well as damage suffered by the party to his professional reputation and damage from loss of clientele due to the non-conformity [of the goods] by the counter-party to the terms of the sales contract, since the said damage is not, as a general rule, considered to be foreseeable (cf. A. Valtoudis, Liability for Damages Pursuant to the Vienna Convention (foundation, discharge from liability and extent of damages) in Northern Greece Law Union ENOBE, The Vienna Convention on International Sale of Goods, 2001, 47, pp. 71-72). As for the rest, the calculation of damages is specific, as in the [Greek] Civil Code, while the party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss. If he fails to take such measures, the party in breach of the contract may claim reduction of damages, in the amount by which the loss should have been mitigated (CISG Article 77) (D. Flambouras/G. Petrocheilos, The Vienna Convention on the International Sale of Goods as Interpreted by Arbitral Tribunals, Commercial Law Review [...] 2000, 55)."

2.2.12 Claim for interest under CISG

"From CISG Article 78, it is concluded that interest is due, without it being necessary to serve a notice upon the promisor and regardless of any damage sustained by the promisee (Multi-Member First Instance Court of Thessalonica [...] 22513/2003 as above; Single-Member First Instance Court of Thessalonica [...] 14953/2003, published in NOMOS Legal Database; G. Nikolaidis, The International Sale of Goods pursuant to the Vienna Convention, rd. 2000, p. 123), even in case of limitation of the claim of the action from adjudicative [claim] to declaratory [claim] (Multi-Member First Instance Court of Thessalonica [...] 22513/2003, as above), while due to the over-legislative effect of CISG, pursuant to Article 28 1 of the Greek Constitution, it supersedes cases where the promisor enjoys the legislative privileges of the State, owing interest from the date the action was served upon, pursuant to Article 21 of the decree of 26-6/10-7-1944 'Code of Laws for Trials Concerning the State'."

2.2.13 Time of delivery of the goods under CISG

"From CISG Article 58(1) it is concluded that, in the absence of a specific agreement to the contrary, the time when the goods and their supporting documents have been made available to the counterparty of the seller is set to be the time, at which the price that is due is payable and, as is concluded from the joint application of Articles 59, 78 and 79 with recourse thereto, the period for which interest is due is determined, provided that the settlement of the relevant monetary obligation has been delayed. The period from which it is concluded that the goods have been made available to the counterparty of the seller is that specifically determined, by virtue of Articles 67-69 of the CISG, the time that the risk is transferred [to the buyer], as of which [time], pursuant to the rule of CISG Article 66, release of the counterparty of the seller from his liability to pay the total price is precluded. The said time results from the joint application of Articles 31, 67 and 69 of the CISG and in case of doubt it coincides with the performance or breach of the obligation for the taking over of the goods by the counterparty to the seller or in the event that there is transport of goods with their handing over to the first carrier (Single-Member First Instance Court of Thessalonica [...] 43945/2007 as above; P. Kornilakis as above, pp. 154 et seq., Tzouganatos, The transfer of risk pursuant to Articles 66-70 of the United Nations Convention for International Sales of Goods, Commercial Law Review [...] 1998, 509 et seq.; G. Nikolaidis, The International Sale of Goods pursuant to the Vienna Convention, 2000, pp. 101 et seq.)."

2.2.14 Pre-contractual liability in contracts governed by CISG

"The issue of pre-contractual (established during the negotiations) liability, according to the opinion that this Court adopts, is not regulated by the CISG, except for the cases in which the CISG regulates specifically an issue for the period before the conclusion of the contract (e.g., CISG Article 16(2)). Therefore, any remedy related to pre-contractual liability which derives from the provisions of domestic law to which the rules of the private international law of the forum refer to (e.g., [Greek] Civil Code Articles 197-198), may apply in parallel with the provisions of the CISG, since the regulation of pre-contractual liability as a whole was excluded in the CISG intentionally by the international legislators (A. Valtoudis as above, p. 50; D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraph 98, with references to foreign legal doctrine; contra G. Nikolaidis, The Importance of Good Faith and Pre-contractual Liability pursuant to the Vienna Convention for the International Sale of Goods, Chronicles of Private Law [...] 2002, 891 et seq., who takes the position that the CISG applies also for pre-contractual liability pursuant to Article 7(2) which orders good faith conduct during the negotiations)."

2.2.15 Concurrent application of domestic provisions in tort and CISG provisions

"According to the opinion this Court adopts, if there is concurrent application of domestic provisions for tort (non-contractual liability) with the provisions of the CISG (intra-contractual obligation), the party that suffered damage may claim compensation for his physical damage only based on the provisions of the CISG, otherwise there is the risk for non-uniform application of the CISG (A. Valtoudis, The Problem with Concurrent Liability for Defects pursuant to the Vienna Convention (CISG) compared with the domestic non-contractual law, Armenopoulos [...] 1999, 348 et seq.; P. Kornilakis, as above, p. 113; G. Nikolaidis, The International Sale of Goods pursuant to the Vienna Convention, Ed. 2000, p. 64; D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraph 102a with references to foreign legal doctrine which supports the view that claims under the Convention and [claims] under tort co-exist."

2.2.16 Unjust enrichment claims in contracts governed by CISG

"Finally, if the provisions of the CISG apply concurrently with the domestic provisions on unjustified enrichment, according to the opinion that this Court adopts, the application of the domestic provisions is excluded since, on the one hand, the provision of CISG Article 84(2) is the basis for the relevant general principle of the Convention which orders the return of the enrichment received in case the sales contract is declared avoided at a later time, and, on the other hand, the provision of CISG Article 81(2)(a) provides that after the exercise of a party's remedy to declare the contract avoided, there is an obligation by law [(ex lege obligation)] for the return of the obligations that have not been performed (G. Nikolaidis, The International Sale of Goods pursuant to the Vienna Convention, ed. 2000, p. 136; same author, Sphere of Application of the Vienna Convention for the International Sale of Goods (Law 2532/1997), 2001 p. 258 with further reference to foreign literature; D. Flambouras, "International Sales" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) paragraph 103, with references to foreign case law and legal doctrine."

2.3 Private International Law Matters

2.3.1 1980 Rome Convention [applicable law on contractual liability]

"By the 1980 Rome Convention, which dealt with the applicable law on contractual obligations, which was ratified by Greece with Law 1792/1988 and has been in force since 1 April 1991, the rules of the private international law of the Members States of the European Community which refer to contractual obligations were unified. In particular, by virtue of the provisions of Articles 3 and 4 of this international convention, it is provided that: The contract is governed by the law selected by the contracting parties. The selection must be expressed or resulting with certainty by the terms of the contract or the circumstances of the case (Article 3 1). From the wording of this provision, it is concluded that the parties may freely select any law, even a law which has no relation to their contract, unless these are rules of direct application of the law of the adjudicating judge, i.e., the provisions of mandatory law of the forum which obligatorily apply regardless of the law governing the contract, pursuant to Article 7 2 of the said Convention (Court of Appeals of Piraeus 322/2000, Commercial law Review 2001.574). It is accepted that tacit choice of the law is concluded from elements such as the invocation of the application of provisions of a specific law with the suggestions of the litigants. To the extent that the law applicable to the contract has not been selected in accordance with the above, the contract is governed by the law of the country with which it is most closely connected. Subject to the above, it is concluded that the contract is closely connected with the country where the counterparty who is obliged to perform the characteristic obligation has, at the time the contract was concluded, his place of business or domicile, or if a company, association or legal entity is concerned, its headquarters. However, if the contract is concluded during the exercise of the professional activity of the said counterparty, then that country is the one where his main premises are located. The above do not apply when the characteristic obligation cannot be determined, as well as when, from all circumstances prevailing, it is concluded that the contract is closely connected to another country (Article 4 1, 2 and 5). Pursuant to the provision of Article 10, section (d) of the Convention, foreign law for obligations, the applicable foreign law regulates issues such as statutory limitation, suspension and termination thereof for any reason whatsoever (Supreme Court [...] 384/2005, Commercial Law Review [...] 2005, 375, Armenopoulos [...] 2005, 1985, Companies and Undertakings Law [...] 2005, 1079; Court of Appeals of Athens [...] 5035/2003, Companies and Undertakings Law [...] 2004, 1175; Court of Appeals of Piraeus [...] 475/2007, Companies and Undertakings Law [...] 2008, 612; Court of Appeals of Piraeus [...] 307/2005, Shipping Law Review [...] 2005, 82; Court of Appeals of Thessalonica [...] 1318/2003, Commercial Law Review [...] 2004, 299; Multi-Member First Instance Court of Athens [...] 1516/2002, Case Law Database [...] 2003, 241; Single-Member First Instance Court of Thessalonica [...] 14953/2003, published in NOMOS Legal Database; A. Grammatikakis-Alexiou, Z. Papasiopi-Pasia, E. Vasilakakis, Private International law 3rd edition, p. 280 et seq.)."

2.3.2 Article 26 of the Greek Civil Code [applicable law on liability in tort]

"Article 26 of the [Greek] Civil Code, regulating the obligations in tort, abandoned the principle of lex fori which was applied by the preceding law (Article 6 2 of T A/1856) and fully adopts the principle of lex loci delicti, providing that obligations from an offense (delict) are governed by the law of the State where the offense (delict) was committed. Thus, the said law shall judge the objective conditions of the liability for tort (damaging event, loss, causative relation [nexus]) as well as the subjective ones (fault, capacity for assessment), the damages (extent, nature, manner of payment, limitations, discharges), the judgment for the beneficiaries and the obligees of damages, as well as the statutory limitation of the relevant claim. The related sense "offense" as used in Article 26 of the Civil Code, must not necessarily be identified with the meaning of Article 914 of the Civil Code, given that it must be capable of "capturing" all respective concepts of foreign laws (Ap. Georgiadis - M. Stathopoulos, Interpretation of Civil Code [...] Volume I, Article 26, p. 67-68; A. Grammatikaki-Alexiou, Z. Papasiopi-Pasia, E. Vasilakakis, Private International, p. 316)."

2.4 Greek domestic rules

2.4.1 Pre-contractual liability: Articles 197-198 of the Greek Civil Code

"From the joint application of the provisions of Articles 197 and 198 of the [Greek] Civil Code, which do not include rules of mandatory law (Supreme Court [...] 1712/2008 published in NOMOS Legal Database), it is concluded that the stage of negotiations commences from the moment the persons interested in concluding a firm mutual contract shall establish contact, for the investigation of the possibility of concluding it and the determination of the terms thereof and ends either upon the final cease of negotiations or with the conclusion of a valid contact, worded in the required legal or contractual form, pursuant to the provisions of Articles 158 and 159 2 of the [Greek] Civil Code. In addition, in order for liability to be established by the negotiations, illegal conduct must necessarily have been exhibited during the above phase, consisting in the breach of the principles of good faith and transactional morals, that is, breach of the two obligations resulting from such principles, being enlightening and protecting the other party [at the stage of negotiations] (Supreme Court 1231/2008, published in NOMOS Legal Database; Supreme Court 12/2006, published in NOMOS Legal Database; Court of Appeals of Athens [...] 3048/2003, Greek Justice [...] 44, 1403). Furthermore, there is compensation only for the damage incurred from action or omission during the stage of negotiations and not prior to or after them. Therefore, if the conduct which was against transactional ethos resulted in the conclusion of the contract, which without the damaging conduct would not have been concluded, damages consist in the restoration of the damaged party to the status before the conclusion of the contract (Ap. Georgiadis - M. Stat [...] hopoulos, Interpretation of Civil Code [...], General Principles, Volume I, Articles 197-198, point 9, p. 320-321 and Special Contractual Law, Volume III, Introductory Remarks to Articles 534-562, item 31-34, p. 134-136; V. Vathrakokoilis, Interpretation of Civil Code [...], Volume I, Article 198, p. 289)."

2.4.2 Other domestic rules [summary of the judgment]

In this part, the Court analyzes the conditions for the application of art. 920 of the Greek Civil Code under which if someone, knowing or ignoring by fault, supports or further transfers untrue information that jeopardizes one's creditworthiness, profession or future, the latter may claim compensation from the former.

Then the Court analyzes the conditions for the application of arts. 71 and 922 of the Greek Civil Code under which a legal entity might be entitled fto compensation in tort due to acts or omissions of corporate bodies (or individuals) that represent the legal entity at the exercise of their duties.

3. RULING OF THE COURT

3.1 Seller's Claim

On 28 July, the Seller [the "Claimant"] filed a claim ["Seller's Claim"] against the Buyer [the "Defendant"].

3.1.1 Request to the Court [excerpt from the judgment, translated by the Editor]

"Based on this background, [the Seller] requests [from the Court]:

      (1) to oblige the Buyer to pay to it the amount of Euro 729,627.58, out of which the amount of Euro 53,175.29, Euro 239,537.09 and Euro 146,059.20 with legal interest from the day following the date set for the settlement of the invoices referred to in the action, i.e., on 29 July 2002, 17 September 2002 and 17 September 2002 respectively, otherwise from the day following the date the extrajudicial written notice was sent, i.e., on 26 September 2002, otherwise from the day following the date the action was served upon it and until full payment, and the amount of Euro 290,856.22 with legal interest from the day following the date the goods were loaded for shipment, i.e., on 31 July.2002, otherwise from the day following the date the extrajudicial notice was sent to it, i.e., on 26 September 2002, otherwise from the day following the date the action was served upon it and until full payment;

      (2) to oblige the Buyer to pay the amount of Euro 500,000.00 as compensation for moral damage it sustained,;

      (3) to order the publication of the purview of the judgment issued in two daily newspapers circulating throughout the whole Greek State;

      (4) to declare the judgment provisionally enforceable; and

      (5) to sentence the Buyer to pay its court expenses."

3.1.2 Ruling on Seller's Claim [excerpt from the judgment, translated by the Editor]

"With this content and claims, the action under judgment, for the acceptance of the hearing for which, pursuant to the provision of Article 214A, para. 8 of the Code of Civil Procedure, the minutes dated 24 October 2005, jointly drawn up by the authorized attorneys-at-law Mr. D. Samoladas, I. Oikonomakis and D. Papaioannou of the litigants, is produced, from which it is concluded that the endeavor to extrajudicially settle the dispute failed, and it is subject, pursuant to the provisions of the above main thought, to the international jurisdiction of this Court, in accordance with the provisions of Articles 1 1, 2 1, 5 1, 23 1, 24, 60 , 66 1, 68 1 and 76 of the (EC) Regulation 44/2001 of the European Council dated 22 December 2000, "On International Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters", which entered into effect on 1 March 2002, substituting the Brussels Convention, which (the regulation) supersedes and other provision of Greek law, in performance of Article 249 of the EC Treaty.

In particular:

      (a) As regards the part of the action where the Seller seeks, on one hand, to be compensated by the Buyer for the total amount of Euro 729,627.58, due to positive and negative loss it sustained from the refusal of the Buyer to settle the price of the goods delivered to it by the Seller and to accept the delivery of the last order, in accordance with the terms of their mutual contract no. 46/04 July 2001 and, on the other, the payment of the amount of Euro 500,000.00 due to damage sustained to the international reputation of the Seller, because the Buyer declared the contract avoided and concluded a new contract with another supplier who is in direct competition with the Seller, the international jurisdiction of this Court is founded on a valid prorogation agreement which was concluded by the litigants (Article 23 1 of the (EC) Regulation 44/2001), setting out in clause 8.3 of the above sales contract executed, that for any dispute that may arise from the performance of the said contract, the Court of Athens would be competent. This agreement is valid, since both parties have their places of business in Member-States of the European Union (The Netherlands and Greece, respectively), they set out in writing that the competent courts would be the courts of a Member-State for the judgment of disputes concerning property which derive from a specific legal relation, i.e., the sales contract under judgment. In addition, the international jurisdiction of this Court is founded on the tacit prorogation (Article 24 of the (EC) Regulation 44/2001), since the Buyer appeared without contesting the international jurisdiction of this Court, and this Article applies, regardless of the contractual determination of the competent court by the litigants, in accordance to the provision of Article 23 of the above-mentioned regulation.

      (b) As regards the part of the action where the Seller requests compensation for moral damages sustained due to a tort of the Buyer, consisting in slanderous talks against it, this Court has international jurisdiction, as being the court of the place where the fact that caused the moral damage of the Plaintiff [Seller] took place, according to the brief of the action (Article 53 of the (EC) Regulation 44/2001, otherwise of the place where the Defendant [Buyer] has its statutory place of business (Article 2 1, Article 60 of the (EC) Regulation 44/2001). Furthermore, the action is accepted in substance and is brought before this Court in terms of jurisdiction (Articles 7, 9, 12, 13, 14 1 and 2, 19 1 and 42 of the Code of Civil Procedure) in order to be judged during the ordinary process and has been sufficiently defined, since it refers the founding facts (Articles 118 and 216 of the Code of Civil Procedure), except for the part where the Seller requests that the Buyer be obliged to pay to it the amount of Euro 500,000.00 as compensation for moral damage Seller sustained from the slanderous talks against it, which is vague and cannot be judged by the Court, since it does not clearly exhibit the facts required in order to be legally founded. In addition, although the action is filed against a legal person, which does not commit a tort directly, but it is responsible for a tort committed by its bodies or persons drawing rights from it (employees, workers, etc.) in accordance with the provisions of Articles 71 and 922 of the Civil Code, which apply, pursuant to the provision of Article 26 of the Civil Code, as the law of the place where the tort (according to what is referred to in the action) of the Defendant Buyer was committed, no reference is made of the natural person (or natural persons) who committed the illegal action, by virtue of which the Seller's reputation was damaged, the special relationship of the said person with the Buyer, stating in particular that it acted as a body thereof or as a worker or employee or under any other capacity which connected it to the Buyer], as well as the cause of the said conduct (fraud or negligence) of the said person and if it acted within the limits of its duties or orders that it had taken from the Buyer. In addition, no reference is made in the action that the bodies or the persons drawing rights from the Buyer were aware or intentionally ignored the untruthfulness of the slanderous talks that the supported untrue talks causally exposed to great risk the credit of the Seller and that its property was causally damaged, since the above goods were exposed to risk. These deficiencies cannot be remedied with the pleadings, or with the reference to the context of another document, nor from the examination of evidence, since they contradict the provisions relating to the preliminary procedure of Article 111 of the Code of Civil Procedure, whose observance is ex officio examined by the Court. In this case, we are dealing with a "legal vagueness" of the action, since the substantial facts establishing its background are not referred therein. In this manner the Court cannot, on one hand, examine the brief of the action, and the Buyer cannot defend. Therefore, after the ex officio examination, the action, as to the above-mentioned part, must be rejected as being vague and unacceptable.

Furthermore, in accordance with the above referred thoughts, the action is legal, being founded on the provisions of Articles 1 1, 3, 4, 6, 7, 9, 25, 30, 31, 33, 35, 53, 57, 58, 59, 61, 62, 66, 67, 69, 74, 78, 99 and 100 of the Convention of the United Nations for the International Sale of Goods (CISG), Articles 340, 345, 346 of the Civil Code, 904 1 and 2 case (a), 907, 908 case (f) and 176 of the Code of Civil Procedure, except:

      (a) the motion for the compensation of Euro 500,000.00, due to the damage incurred to the international reputation of the Seller which was caused when the Buyer declared the contract avoided and concluded a new sales contract with a competitor of the Seller, since, even if the actual facts of the brief of the action are deemed true, they cannot establish the liability of the Buyer for monetary compensation of the Seller, since non-property damage is not compensated under the CISG, while based on the theory of foreseeability which applies to this contract, the invoked damage of the Seller to its professional reputation could not, based on the criteria referred to in the main thought, be foreseen by the Buyer (subjective foreseeability), neither was the Buyer obliged to have foreseen it (objective foreseeability) as a potential consequence of the contractual breach, throughout the contract,

      (b) the subsequent motion thereof to order the publication of the purview of the judgment issued in two daily newspapers circulating throughout the Greek State, since no such provision is made in the CISG, neither within the context of the tort, for which the action was nevertheless rejected. Therefore, the part for which the action was deemed accepted and legal must be further examined as to the legal substance, given that the required court stamps with all legal surcharges in favor of the Jurists Fund (TN) and the Athens Lawyers Welfare Fund (TPDA) have been paid (see duplicate receipt No 6084100/20 November 2007 issued by the Tax Office of Athens and cash receipt voucher No 576051/20 November 2007 and 16.537/20 November 2007 of the Jurists Fund and Athens Lawyers Welfare Fund respectively).

The Buyer, via its written pleadings legally produced, reasonably opposes the action, raising allegations on its legal and substantial grounds, for the reasons illustrated in detail in the brief of its pleadings.

Furthermore, [the Defendant-Seller] claims that:

      (1) The Buyer, during the period the risk was transferred, did not correspond to the terms of the sale contract dated 4 July 2001, since on 20 September 2002, during the ballistic tests of the bulletproof vest and the delivery, the committee responsible for ensuring the quality of the product, verified that the bulletproof vests were punctured and for this reason the action must be rejected. This allegation of the Seller, in accordance with the above exhibited thoughts, constitutes an objection, which relies on the provisions of Articles 36(1), 38(1), 39, 60(b) and 67-69 of the CISG, since, based on the actual facts described in the brief of the pleadings, after the delivery of the bullet-proof type "DYNEEMA UDX/SB31" of the Seller, (the Buyer) did not proceed with the examination thereof within as short a period as is practicable in the circumstances, thus losing the right to notify the lack of conformity to the Seller, specifying the nature of the lack of conformity in detail, so as to reverse the burden of proof and causing the Seller to be obliged to prove that at the time the risk was transferred the above material corresponded to the sale contract under judgment.

      (2) It has against the Buyer similar -- as to their object -- and due counterclaims concerning (a) expenses it incurred for repair and replacement of the Dyneema UD-SB31 material with aramidic material (Kevlar) in the bulletproof vests which amount to a total of Euro 655,671.01 (103,750.77 + 314,758.62 + 43,247.36 + 193,914.26), (b) a total consideration of Euro 8,151.08 from the sale and delivery to it of 3,189 kg of pieces of the above material which resulted after the process (waste) and (c) a claim of the amount of Euro 7,680.87 which was assigned to it by "EBO S.A." in relation to its participation percentage in the cost of the ballistic tests conducted in November 2000 in the ballistic station of the University of Granfield in England, which, according to an inviolable term of the International tender for the procurement of antiballistic material, would be born by the participating companies, pursuant to the events analytically referred to in the brief of the pleadings, which it suggests for set-off.

However, part of the claims of the Buyer against the Seller and in particular, the amount of Euro 628,645.60 constitutes the content of the jointly judged action dated 21 December 2006 with brief deposit number 11867/2006, since there is identification of the background, motion and litigants between it and the objection for set-off raised (the reversal of the roles of the litigants has no legal importance), and thus the trial is pending, in accordance with the provision of Article 222 1 of the Code of Civil Procedure.

Consequently, whereas the objection for set-off raised by the Buyer via its pleadings dated 14 November 2007 has been raised at a later date than its action above, its hearing must, for the above-mentioned amount thereof which coincides with the amount of the said action, after being ex officio examined as a negative procedural condition of the trial (Court of Appeals of Athens [...] 7840/1995, Greek Justice [...] 1996.1123) be adjourned until the first trial is concluded, in accordance with Article 222 2 of the Code of Civil Procedure (Kerameas-Kondylis-Nikas, Interpretation of Code of Civil Procedure, Volume I, Article 222, notes 11 seq., page 485 seq., V. Vathrakokoilis, Interpretation of Code of Civil Procedure, Volume B, Article 222, notes 6, 6a, 6b, 8, 14, 16, 38, 43, pp. 39-40, 42-43, 50, 52).

On the contrary, the claim of the Buyer for the amount of Euro 43,247.36 which is suggested for set-off and which is not identified with the content and the extent of its above action, is legal, being founded on the provisions of Articles 440, 441 and 442 of the Civil Code [...] 1519/2008, published in NOMOS Legal Database, Supreme Court [...] 1562/2008, published in NOMOS Legal Database, Supreme Court [...] 1703/2008, published in NOMOS Legal Database, Supreme Court [...] 1438/2005, published in NOMOS Legal Database, 47.181, Court of Appeals of Athens [...] 3091/2007, Civil Law Applications [...] 2008.810), which apply to this case, in accordance with the content of the above main thought, following express choice of the litigants, by virtue of clause 8.4, to have the sales contract governed by the Greek Law, in accordance with the provision of Article 3 1, in conjunction with Article 10, par. d of the 1980 Rome Convention for applicable in contractual obligations, which was ratified by Greece with Law 1792/1988 and applies since 1 April 1991, the application of which is made in performance of the provision of CISG Article 7(2), since there is a gap therein as to the subject in question, which cannot be regulated based on a general principle thereof, and consequently there is an external gap.

      (3) That the Seller participated in a four party legal relationship observing the terms and suggestions of the main parties, i.e., Ministry of Defense - "EBO S.A.", since it entered into the agreement as the sub-fabricator of the latter, adhering the terms of the international tender which it conducted for the procurement of ballistic material which would be used as raw material for the fabrication of bulletproof vests, as well as the terms of their mutual main contract No 016A/2001. That the selection of the Seller as the supplier of the material, was not a decision coinciding in its competency, but that of the two main parties. That when the defective conduct of the material of the Seller in the bulletproof vest was discovered, the main client (Greek Police) and "EBO S.A." demanded the replacement of the bulletproof vest type "DYNEEMA UDX/SB31" of the Seller with aramidic material, so as not to create any doubt as to the safety and not to endanger the human lives. That since the use of the above material of the Seller was objectively impossible, in order not to sustain any further damage it denied the latter the taking over of 29,871 meters of the said material. That the Seller, claiming the payment of Euro 290,856.22 for the non-delivered quantity of 29,871 meters of bulletproof material type "DYNEEMA UDX/SB31", it exercises its right in profound excess of the limits set by good faith, transactional customs and its social and financial purpose. This allegation, for the foundation of which on the provision of Article 281 of the Civil Code which applies hereto, efforts are made, in accordance with the above thoughts, constitutes an objection for abusive exercise of a right, but it is illegal and thus unacceptable, since the events described in the brief of the pleadings, based on which the conduct of the Seller will be judged, as the beneficiary, preceded the exercise of the right and the actual condition that has resulted, justifies the exercise thereof, since it does not profoundly exceed the limits set by the above provision, meaning that no impression of sound injustice is created as regards the benefit of the Seller-beneficiary from the exercise of the right (Plenary Session of Supreme Court [...] 1/1997, Greek Justice [...] 1997.534, (Supreme Court) [...] 466/2008, published in NOMOS Legal Database, (Supreme Court) [...] 763/2008, published in NOMOS Legal Database, (Supreme Court) [...] 681/2000, published in NOMOS Legal Database, Greek Justice [...] 2001.110, Supreme Court [...] 1084/1999, Greek Justice [...] 1999.1542."

3.2 Buyer's Claim

On 21 December 2006, the Buyer [the "Claimant"] filed a claim ["Buyer's Claim"] against the Seller [the "Defendant"].

3.2.1 Request to the Court [excerpt from the judgment, translated by the Editor]

"Based on this background the [Buyer], invoking the provisions of the contract of sale, the [legal provisions on] pre-contractual liability, [the legal provisions on] tort, and in addition, the [legal provisions on] unjustified enrichment, requests [from the Court], following the accepted limitation of its adjudicative motion to declaratory, with the pleadings and the oral statement of its authorized attorney-at-law, which was recorded in the Minutes (Article 223 section (b), 294, 2951, section (b) and 297 of the Code of Civil Procedure):

      (1) that it be acknowledged that [the Seller] is obliged to pay to the [Buyer] the total amount of Euro 628,245.60, of which the amount of Euro 193,914.26, Euro 103,750.77 and Euro 314,758.62 with legal interest thereupon, from the day following the date the action was served upon and until the full repayment, the amount of Euro 8,151.08 with legal interest thereupon, from the day following the date the goods referred to in the background were taken over, by virtue of the invoice No. 76933/24 November 2004 of the carrier company, i.e., on 4 November 2004, otherwise from the day following the date the action was served upon and until the full repayment and the amount of Euro 7,670.87 with legal interest from the date the Seller was notified in writing, i.e., on 22 February 2002, otherwise from the day following the date the action was served upon and until full repayment,

      (2) that it be acknowledged that the Seller is obliged to pay to the Buyer the amount of Euro 300,000.00 as compensation for moral damage the Buyer sustained, with legal interest thereupon, from the day following the date the action was served and until full repayment,

      (3) that the publication of the purview of the judgment issued be ordered, in two daily newspapers circulating throughout the Greek State at the cost of the Seller,

      (4) that the judgment be declared provisionally enforceable and

      (5) that the Seller be sentenced to pay its court expenses."

3.2.2 Ruling on Buyer's Claim [excerpt from the judgment, translated by the Editor]

"With this content and motions, the action under judgment is subject, for the acceptance of the hearing for which a statement of the authorized attorney-at-law of the Buyer Mr. G. Kakoulakis is produced, from which the failure of the endeavor for extrajudicial settlement of the dispute is concluded, pursuant to the content of the above main thought, to the international jurisdiction of this Court, pursuant to the provisions of Articles 1 1, 5 1, 23 1, 24 1, 66 1, 68 1 and 76 of the (EC) Regulation 44/2001 of the European Council, dated 22 December 2000 "On International Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters" which entered into effect on 1 March 2002, substituting the Brussels Convention, which (the regulation) supersedes and other provision of Greek law, in performance of Article 249 of the EC Treaty. In particular:

      (a) As regards the part of the action where the Buyer seeks the payment of compensation by the Seller, because the antiballistic material Dyneema SB31 that the Seller handed over to the Buyer did not conform, as regards the quality and nature, to the requirements of their mutual contract no. 46/04 July 2001, and thus the Buyer sustained positive and negative loss which amounted to a total of Euro 612,423.65, the international jurisdiction of this Court is founded, on the one hand, on a valid prorogation agreement which was concluded by the litigants (Article 23 1 of the (EC) Regulation 44/2001) as mentioned above, setting out in clause 8.3 of the above sales contract executed, that for any dispute that may arise from the performance of the said contract, the Court of Athens would be competent and, on the other, on the tacit prorogation (Article 24 of the (EC) Regulation 44/2001), since the Seller appeared without contesting the international jurisdiction of this Court, and this Article does not apply, regardless of the contractual specification of the competent court by the litigants, in accordance to the provision of Article 23 of the above-mentioned regulation. Besides, from the review of the above clause, interpreted in accordance with Article 173 and 200 of the Civil Code, it is concluded that it was agreed that all disputes arising from their mutual sales contract would be subjected to the exclusive jurisdiction of this Court, without excluding the disputes based on tort and unjustified enrichment, i.e., those that are based on the sales contract, as well as those deriving from the performance of that contract, but which are based on the provisions on tort or unjustified enrichment. The above are concluded by the clear wording of the above clause, according to which all disputes deriving from the contractual relationship, as well as claims for unjustified enrichment are subject to the jurisdiction of this Court, since there is no distinction thereof, neither anything to the contrary can be concluded by the agreement between the parties (Supreme Court [...] 755/1993, Greek Jurists Journal [...] 1994.529, Court of Appeals of Athens [...] 2688/1995, Shipping Law Review [...] 24.96, Court of Appeals of Piraeus [...] 189/1991, Commercial Law Review [...] 1991.700, Court of Appeals of Piraeus [...] 1401/1981, Shipping Law Review [...] 10.141, Court of Appeals of Athens [...], 3078/1977, Legal Podium [...] 26.736, Multi-Member First Instance Court of Athens [...] 6765/2004, Armenopoulos [...] 2005.566, [...]. Kerameas, Legal Studies II, 1994, p. 583-585).

      (b) As to the part of the action where the Buyer claims compensation for Euro 612,423.65, on the grounds of pre-contractual liability, this Court has the international jurisdiction in order to judge it, due to tacit prorogation (Article 24 of the (EC) Regulation 44/2001, since the Seller appeared without contesting the international jurisdiction and there is no case of exclusive international jurisdiction of another court, pursuant to Article 22 of the above regulation.

      (c) As to the part of the action where the Buyer seeks the payment, on one hand, of the consideration of Euro 8,151.08 from the sale to the Seller of 3,189 kg, net weight, of pieces of material which remained after the process (waste), and on the other, the amount of Euro 7,679.87 which was assigned to it by "EBO S.A." against it, this Court has international jurisdiction to hear the dispute since it is located at the place where the Seller was required to perform the relevant obligations (Article 5 1 of the (EC) Regulation 44/2001).

Furthermore, this action is lawfully brought before this Court as to its ratione materiae and as to the location (Articles 7, 9, 12, 13, 141 and 2, 181 and 42 of the Code of Civil Procedure) in order to be heard during the ordinary procedure and it has been adequately defined, since it contains all necessary evidence in order to be raised by the Buyer against the Seller and clearly refers to the founding events which constitute its historical basis (Articles 118 and 216 of the Code of Civil Procedure). This is why the relevant allegation of the Seller about the vagueness of the action must be rejected as being groundless.

Besides, pursuant to the main body of the action, where the Buyer requests to be compensated by the Seller for the total amount of Euro 612,423.65, which is grounded on a pre-contractual liability of the latter, it must be accepted, given that it presents elements of foreign character, whereas although the Buyer has its place of business in Greece (Kymi, Euboea), the Seller has its place of business in the Netherlands, and the applicable provisions are the relevant provisions of the domestic Civil Code, as being the law not only tacitly chosen by the litigants from the invocation to the application of its provisions, but also since the ex lege obligation was connected more closely to Greek law, since the phase of negotiations began with the dispatch by the parent company of the Buyer "EBO S.A." which has its place of business in Greece, of a relevant proposition to, among others, the Seller, for the conclusion of a raw material sales contract (ballistic material) for the construction of bullet-proof vests.

According to the above-mentioned thoughts, the action, according to its basis which is founded on the sales contract, is legal, being founded on the provisions of Articles 1(1)(a), 3, 4, 6, 7, 9, 14, 15, 18, 23, 25, 30, 31, 33, 35, 36, 38, 39, 45, 53, 57, 58, 59, 61, 62, 66, 67, 74, 78, 99, 100 of the CISG, Articles 197, 198, 340, 345, 346, 455, 460 and 462 of the Greek Civil Code and Articles 70 and 176 of the Greek Code of Civil Procedure.

On the contrary, the following are not lawful and are rejected:

      (a) The bases of the action founded on tort and unjustified enrichment, since these do not apply jointly with the provisions of the CISG, since in a different case, the risk for non-uniform application thereof [of the CISG] would emerge, and thus the Buyer would be entitled to claim damages only based on the provisions of the said Convention;

      (b) The motion of the action by which the Buyer claims compensation for Euro 300,000.00 due to moral damage it sustained by the damage to its reputation caused by the Seller, the disturbance of its commercial relationships with main and privileged customers, the Ministry of Defense and the Greek Police, and the harm of the prestige and credibility of its goods to them, since, even if the actual facts of the brief of the action are deemed true, they cannot establish the liability of the Seller for monetary compensation of the Buyer, since non-property damage is not remedied by the CISG. In addition, based on the theory of foreseeability which applies to this contract, the Seller could not, based on the criteria referred to in the main thought, foresee the damage claimed by the Buyer to its business reputation and credibility (subjective foreseeability), neither it was obliged to have foreseen it (objective foreseeability) as potential consequence of the contractual breach, throughout the contract;

      (c) The subsequent motion of the action to order the publication of the purview of the judgment issued in two daily newspapers circulating throughout the Greek State, is denied since no such provision is made in the CISG, neither within the context of the pre-contractual liability or the provisions for the assignment;

      (d) The subsequent motion of the action to have the issued judgment declared provisionally enforceable, after the limitation of its motion from adjudicative to declaratory, is also denied since a declaratory judgment, cannot, after being finally issued, be declared provisionally enforceable (Kerameas-Kondylis-Nikas, Interpretation of the Code of Civil Procedure, Volume II, Article 907, p. 1721, with references to case law, I. Brinia "Compulsory execution" 2nd Edition, Volume I, par. 14 I, pp. 57-58, with references to theory and case law, Mitsopoulos, declaratory action, 1947.184).

Therefore, the action in the part that was deemed accepted and legal must be further examined as to the legal substance, given that after its turn to declaratory, there is no obligation to pay, the court stamps with all legal surcharges in favor of the Jurists Fund (TN) and the Athens Lawyers Welfare Fund (TPDA).

The Seller, via its written pleadings legally produced, excepting the allegation of the vagueness of the action, reasonably opposes the Buyer's action, projecting allegations on its legal and substantial grounds, for the reasons illustrated in detail in the brief of its pleadings. Furthermore, the Seller claims that, since it delivered the shipments under judgment of the Material made from polyethylene type DYNEEMA SB31 for the fabrication of bullet-proof vests to the Buyer from January 2002 to July 2002, the Buyer, via the letter of its parent company "EBO S.A." No. 1471/ [...] /9 October 2002 informed the Seller of the lack of conformity with the terms of the above contract, due to puncture of the material and the action under judgment was filed before this Court on 21 December 2006 and served upon the Seller at a latter date, thus rendering the Buyer's claims a subject of statutory limitation. This allegation is an objection and it is legal, being founded on the provisions of Articles 247, 277, 554 and 555 of the Civil Code (in conjunction with CISG Article 39), as applied before being replaced by Article 1 1 of the Law 3043/2002 which entered into effect on 21 August 2002 (Article 14 of the said law) and which apply, since the sales contract under judgment was concluded prior to the effect of the said law, pursuant to the general principle of diachronic law, which is expressly established with the provisions of Article 2 of the Civil Code and Article 24 of the Introductory Act of the Civil Code, obligations under any cause, the producing events of which took place during the time of effect of a certain law which was later abolished or amended, are governed after the abolishment or amendment by the law in force at the time the said producing events took place (Supreme Court [...] 388/2004, Legal Podium (NoB) 2005/659, Supreme Court [...] 223/2002 published in NOMOS Legal Database, Supreme Court [...] 1/2001, Greek Justice [...] 42.680, Court of Appeals of Athens [...] 1060/2008, Companies and Undertakings Law [...] 2008/1284, Court of Appeals of Thessalonica [...] 1986/2003, Armenopoulos [...] 2005.206, Court of Appeals of Patra [...] 413/2004, Achaean Case Law [...] 2005.58, Court of Appeals of Dodecanese [...] 3/2007 published in NOMOS Legal Database, Multi-Member First Instance Court of Thessalonica [...] 18996/2007, Armenopoulos [...] 2007/1693).

Otherwise and in addition, even if it could be assumed that the claim of the Buyer was generated after the publication of the Law 3043/2002, since on 9 October 2002, by means of the letter of its parent company "EBO S.A." the Buyer informed the Seller of the lack of conformity to the terms of the above-mentioned contract, due to puncture of its material, and thus the statutory limitation which had not lapsed at the time was governed by the provisions of the above newer law, which is adopted by the diachronic law provision of Article 18 of the Introductory Law to the Civil Code (Supreme Court [...] 339/1996, Greek Justice [...] 38.71, Council of the State 658/1996, Greek Justice [...], 37.726, Single-Member First Instance court of Drama [...] 22/2004, Armenopoulos [...] 2005.693, V. Vathrakokoilis, Interpretation of Code of Civil Procedure, Volume B, Article 18, p. 2512), again the objection raised by the Seller for statutory limitation is legal, being founded on the above provisions, as in force following the replacement of Article 554 of the Civil Code with Article 11 of the Law 3043/2002, with which the statutory limitation for goods was prolonged from six months to two years.

In its defense and in order to rebut the objection for statutory limitation raised by the Seller, the Buyer alleges:

      (a) That the Seller originally concluded the contract with its parent company "EBO S.A." fully accepting and entering into on 14 February 2000, without any reservations, the terms of the international tender for the procurement of the main antiballistic material, among which the minimum warranty for the goods was set to ten (10) years, thus guaranteeing the good status and conduct of its materials for ten years. That between "EBO S.A." as the awarding authority of the international tender, and the Seller, a contract was concluded in favor of a third party and namely it, within the context of which it promised the performance of the obligation and all other obligations deriving from it and as a result, since a ten-year warranty-period of liability of the Seller was set and the lack of conformity to the contract was established within the said deadline, i.e., on September 2002, its claim has not been subjected to statutory limitation. The Buyer's claim for the contractual prolongation of the period for statutory limitation of its claim is based on the provision of Article 556 of the Civil Code and constitutes a reasonable denial of the objection raised by the Seller for statutory limitation (Ap. Georgiades-M. Stathopoulos, Interpretation of the Civil Code, Volume III, Articles 554-558, note 228, p. 228).

      (b) That, by virtue of the contract no. 46/4 July 2001 it was agreed that the Seller, for the consideration of Euro 2,515,464, would deliver 155,000 meters of fabric Dyneema SB31, in successive partial deliveries which, by the nature of the contract itself, constituted supplies of a unified good. That due to the non-conformity on behalf of the Seller to the terms of the contract, the Buyer did not take over the last quantity of 29,871 meters of fabric Dyneema SB31 out of the order of 155,000 meters, and as a result, since the period for the statutory limitation of its claim did not commence, this claim is not subject to the said statutory limitation. This allegation of the Buyer, which is attempted to be founded on the provision of Article 555 of the [Greek] Civil Code and constitutes a justified denial of the objection for statutory limitation raised by the Seller, is rejected, since, according to the events referred to in the brief of the action, until the discovery of the problem in material of the Seller on September 2002, the Buyer had handed over to the Ministry of Defense approximately 6,900 bullet-proof vests, a fact which shows that the successive delivery installments were independent [from each other] and it was not the case of supply of a unified good, as the Seller claims with no legal grounds (Georgiades-M. Stathopoulos, Interpretation of the Civil Code, as above, note 24, p. 218), and in any case the period for statutory limitation set out in the provision of Article 554 of the Civil Code, in accordance with the above main thought, commences not from the time the delivery of the goods sold by the Seller to the Buyer took place, but from the date, pursuant to the provision of CISG Article 39(1), the letter No. 1472/ [...] of the parent company "EBO S.A." was notified to the Seller, i.e., on 9 October 2002. A different interpretational approach, consisting in the non-commencement of the statutory limitation when the goods have not been handed over, in case the buyer in a contract for partial installments declares the contract avoided as to a specific installment obligation due to the non-performance of the obligations of the seller which derive from the sales contract in accordance with the provisions of CISG Article 73(1), would result in a situation where the buyer's claims against the seller would be subject to prescription, which is unaccepted by all laws.

      (c) That the [Seller], being aware due to its extended experience and know-how at the time the risk was transferred to it, that the fabric Dyneem UDX/SB31 lost its antiballistic properties with respect to the type of vest which would be used, although it was obliged to notify the lack of the agreed quality, withheld it by means of fraud, in order to undertake the tender. That if it [the Buyer] had been aware that the material of the Seller had a different conduct and with respect to its intended use it could be deemed inappropriate, it would never have proceeded with the conclusion of the contract under judgment. This allegation of the Buyer is a counter-objection for statutory limitation and is legal, being founded on the provision of Article 557 of the Civil Code, whereas in this case the statutory limitation applies for a period of twenty (20) years (Supreme Court) [...] 1341/2007 published in NOMOS Legal Database, Supreme Court [...] 507/2003, published in NOMOS Legal Database, Supreme Court [...] 292/1999, Greek Justice [...] 40.1362, Supreme Court [...] 103/1997, Greek Justice [...] 39.127, Court of Appeals of Athens [...] 6774/1998, Greek Justice [...] 39.1682, Multi-Member First Instance Court of Thessalonica [...] 18996/2007, Armenopoulos [...] 2007.1693, Ap. Georgiades-M. Stathopoulos, Interpretation of the Civil Code, as above, note 44, [...]. 228). The above provisions of the domestic (Greek) Civil Code which regulate the statutory limitation of the buyer's claims against the seller, according to the content of the above-mentioned main thought, apply to this case, following the express choice of the litigants, by virtue of the clause 8.4, which provides that the sales contract under judgment will be governed by the Greek Law, pursuant to the provision of Article 31, in conjunction with Article 10 case d, of the 1980 Rome Convention for applicable law in contractual obligations, which was ratified by Greece with Law 1792/1988 and applies since 1 April 1991, the application of which is made in performance of the provision of CISG Article 7(2), since there is gap therein as to the subject in question, which cannot be regulated based on a general principle thereof, and consequently there is an external gap, while Greece has not ratified the New York Convention for the statutory limitation in international sales of goods dated 14 January 1974.

Furthermore, the [Seller], since it justifiably opposes the counter-objection raised by the [Buyer] under Article 557 of the Civil Code, since in its opinion, its liability as the manufacturer of the raw material, is exhausted in the specifications of the materials, which were successfully tested and confirmed not only prior to its selection as the supplier, but also during the new ballistic tests conducted on 30 October 2002 and 1 November 2002, argues that the [Buyer] did not try, by its own fault, to mitigate its damage, since it could achieve a higher safety limit for the bullet-proof vests via the addition of another polyurethane material weighting 24 g which could be supplied by it, worth Euro 0.33 per vest, which corresponded to the improvement of 6,900 vests and would amount to a total of Euro 2,777.00 instead of Euro 418,509.39 which it had to pay in order to repair the said vests. This allegation constitutes an objection and it is legal, being founded on the above referred to, in the main thought, provision of CISG Article 77."

3.3 Final (conclusive part of the judgment [excerpt from the judgment, translated by the Editor]

"From the above actual events which were clearly proved, it is concluded that at the time the risk was transferred, the [Seller] delivered to the [Buyer] the agreed material Dyneema UDX/SB31, 160 mm wide in the quantity and kind that corresponded to the requirements of the sales contract dated 4 July 2001 under judgment, without any actual defects and equipped with the reasonably expected qualities which it presented, in the offer dated 14 February 2000 to Buyer's parent company "EBO S.A.", and which were confirmed during the ballistics tests conducted at Granfield University for the selection of the supplier of the above Buyer company, in which, after testing the conduct of the raw material and not its application to a specific vest design, it was selected as the most suitable one among other candidate materials (CISG Arts. 35 and 36) (D. Flambouras, "The International Sale" in Ch. Pamboukis (edit.), International Transactions Law, Athens, Law Library (to be published) par. 232).

In particular, the above shipments No. 7, 9 and 10 of the material Dyneema UDX/SB31 were dispatched by the [Seller], accompanied by the relevant invoices and certificates of quality, they were taken over by the [Buyer] and successfully passed the quantitative and qualitative control tests conducted by the competent departments of purchasing and quality control thereof, without rejecting any quantity of material due to actual defect or deficiency of the reasonably expected qualities or because there was a qualitative deviation from the agreed upon specifications, since the material was indeed of fine quality and fulfilled in whole the specifications and its characteristics, for which the [Seller] as the raw material provider had guaranteed that it was free of any apparent or hidden defect, for a period of one (1) year which commenced from the delivery date, pursuant to Article 7.3 of sales contract no. 46/2001.

The fine quality of the Dyneema UDX/SB31 material that the [Seller] delivered to the [Buyer] derives additionally from the ballistics tests conducted on 30 October 2002 in the ballistics station of "PYRKAL" within the context of which approximately eighty shots were taken in the same ballistic material and in particular in samples randomly selected from the batch 110097 Dyneema and mainly from the box No. DSM 2002203244, of which the vest was fabricated which, during the ballistic tests on 20 December 2002, was penetrated during the fifth shot, without any unusual conduct being exhibited by the material, so as to characterize it as suspicious for the failure. Based on these findings, the Failure Analysis dated 10 March 2003 reached the conclusion that, from the results of the ballistics tests, the failure of the bulletproof vest was not due to systematic failure of the antiballistic material Dyneema SB31 used.

Furthermore, as regards the penetration of the vest and the simulation specimen of the vest under examination which was performed during the ballistic tests with a submachine gun MP5 on 20 September 2002 and 1 November 2002, the following should be noted:

      To begin with, the two ballistic tests were conducted in the ballistics station of "PYRKAL" which was not certified in accordance with the international standards; ammunition type 9mmX19 Full Metal jacket Lot 304-IVI-879 was used, which was not the type provided for in Annex B of the main contract no. 016A/2001 between the Ministry of Defense and "EBO S.A."; while during the second test, high velocities v2 were measured (average 434 m/s) compared with the requirements of the specifications (426 m/s), while the five (5) shots were taken with an imaginable line on the simulation specimen of the type of vest under examination, instead of the triangular arrangement, with the keeping of specific distances of the points in which the material is hit, in accordance with the safety standard NIJ 010.03 and thus the results cannot be deemed safe and reliable.

      However, based on the ballistic tests on the design simulation specimen, the above Failure Analysis concluded that this phenomenon was a strong indication of poor function of the antiballistic material Dyneema SB31 in this design. However, even if that was the case, the [Seller] did not bear any contractual liability for the conduct of the end product, i.e., the bulletproof vest. In particular, from the review of the context of contract no. 016/2001 between the Ministry of Defense and "EBO S.A." it is concluded with absolute clarity that the [Seller] was not a party therein and therefore it bore no liability whatsoever for the domestic manufacturing of the end product for the Ministry of Defense. The fact that, the [Seller] is mentioned in that contract as one of the sub-suppliers of "EBO S.A." (for the bulletproof cloth) with which the latter was going to conclude a procurement contract, in order to perform its further contractual obligations under the 16A/2001 contract with its counterparty, i.e., the Ministry of Defense, does not in any way alter the context of the sales contract no. 46/2001 concluded between the [Buyer] and the [Seller].

Thus, upon execution on 4 July 2001 of the above contract, the [Seller] undertook the obligation to deliver to the [Buyer] 155,000 linear meters of raw material Dyneema ® UD-SB31, 160 cm wide. This contract makes no statement, in the form of reference or incorporation or annex, to the contact no. 016A/2001 between the Ministry of Defense and "EBO S.A" or to any of the annexes thereof, either in the call of the latter dated 14 January 2000 to the [Seller] for the submission of a financial offer, regarding ballistic material for the manufacture of a bulletproof vest, either in any other contractual text or document. On the contrary, pursuant to Article 9.2 of sales contract no. 46/2001, it was expressly agreed between the [Buyer] and the [Seller] that "this contract supersedes any other relevant text except in the case of apparent mistake which is mutually accepted by both parties". Consequently, since no reference was made to any other contract, text or document, except for sales contract no. 46/2001, only the terms and conditions referred therein would establish the contractual relationship between the [Buyer] and the [Seller], excluding any contingency of application of any other contractual term. However, in this contract, while the [Seller] guaranteed the quality of the material Dyneema ® UD-SB31, no relevant clause was included, for the guaranteed proper design and manufacturing of the bulletproof vests, which one way or the other could not be performed by the [Seller] since, in its capacity as the supplier of antiballistic material, it was not in the position to undertake any liability for the storage conditions, the manner of cut and the manner of incorporation of its bulletproof material in the vest, from the occasional manufacture of bulletproof vests. Thus, although bulletproof vests fabricated with the material Dyneema ® UD are used by the police and the army in more than 50 countries of Europe, Asia and Northern and South America, proving in the most profound way that the antiballistic material of the [Seller] is suitable for the fabrication of bulletproof vests; nevertheless, the said company does not undertake, anywhere in the world, the liability for manufacturing omissions of defects of the bulletproof vests, whereas the fabrication thereof from other fabricators lies beyond the control of the [Seller], which is exclusively limited to undertaking the liability only for any defects of the antiballistic material it supplies, which in this case, had an exceptional conduct in all ballistic tests performed. This is why the [Seller] in each shipment of the material Dyneema ® UD-SB31, issued a compliance certificate, which, after certifying that it met the fabrication specifications, made special reference that it was obliged to inspect the suitability of the said material for its actual application, as well as to conduct the regular audit of the material it took over.

In this manner, the exclusive responsibility for the necessary level of protection of the bulletproof vests ordered by the Greek Police, lay with "EBO S.A." since, by virtue of Article 9 of the contract no. 016A/2001 between "EBO S.A." and the Ministry of Defense, it had guaranteed the proper conduct of the materials supplied, and in a supervising manner, the [Buyer], since in the contract no. 51/01/HMK/19 July 2001 it executed with "EBO S.A." which, it should be noted that it was executed at a later date than the contract 46/4 July 2001 executed with the [Seller], it had been specified that the above main contract no. 016A/2001 constituted an annex and an integral executory part thereof, undertaking thus the obligation to observe the contractual obligations of "EBO S.A." to the Ministry of Defense. Indeed, by virtue of a relevant clause which was included in the contract no. 51/01/HMK/19 July 2001, "EBO S.A." or the Greek Police could request from the [Buyer] the replacement of a product, if any irregularity, defect or damage was discovered. For this reason, since the [Seller] was not a party to contract no. 016A/2001, it was not invited to attend the ballistic tests conducted by the Quality Control Team which was formed by virtue of the [...].900/212087/ [...].11/8 January 2002/ [...] decision for the supervision of the performance of this contract, in any partial delivery of bulletproof vests from "EBO S.A." to the Ministry of Defense.

Most important, the above two penetrations could not be characterized as a systematic damage of the bullet-proof vests, since no penetration was noted, not only in the ballistic tests which were conducted in the ballistics station of "PYRKAL" on 4 September 2003, where shots were taken on material of the same batch as the one of the puncture dated 20 September 2002 and along the space created at the connection point of the two front parts of the vest, but also in ballistic tests that the [Seller] conducted in the shooting field and in the TNO Prins Maurits Laboratories in the Netherlands, with more than 300 shots and with much more powerful ammunition than the ones provided in the contract on a vest of the specific model it manufactured and in particular, along the space created at the connection point of the two front parts of the vest. In addition, prior to the event of 20 September 2002, 6,900 vests had been partially delivered to the Ministry of Defense, out of which, pursuant to clause 4.2 of Annex B of the contract no. 016A/2001, one sample from each of the ten (10) partial deliveries had been checked, and no puncture of the bulletproof vest was noted. Besides, in Article 9, par. 6 of the contract 16A/2001 between the Ministry of Defense and "EBO S.A.", the term "systematic damage" characterizes "the case where the same damage will occur in the same material within the period under warranty and at a percentage exceeding 10% of the delivered goods", which was not the case in this instance.

Following the above, since it was proved that, at the time the risk was transferred, the [Seller] fulfilled the requirements of sales contract no. 46/4 July 2001 under judgment, delivering to the [Buyer] the agreed upon Material Dyneema UDX/SB31, 160 wide in the quantity and kind that corresponded to the terms of this contract, without any actual defects and equipped with the reasonably expected qualities which it presented to the Buyer, the action dated 21 December 2006 with Brief Deposit Number 11867/2006 of the [Buyer] against the [Seller] [for Buyer's Claim, see paragraph 1.12.2 above], regarding its grounds which is founded in the sales contract and damages sustained by the Buyer due to the replacement of the material Dyneema UDX/SB31 with aramid fibers (Kevlar) are claimed, as well as the relevant objection which it raised and as it is based on the provisions of CISG Article 36(1), Article 39, Article 60(b) and Articles 67-69, must be rejected as being groundless in substance.

For the same reason, whereas the [Seller] is not responsible for monetary amounts that the [Buyer] spent for the replacement of the material Dyneema UD-SB31 with aramid material in the bulletproof vests, the objection to set-off that the latter raised, to the extent that it concerns the separate sum of 43,247.36 must be rejected as being groundless in substance.

Furthermore, the Court, based on the above actual events which were proven, cannot be led to the judgment that a pre-contractual liability of the [Seller] is established in the sense that during the phase of negotiations with "EBO S.A." and the [Buyer] the Seller intentionally violated the principles of good faith and transactions morals, i.e., its main two obligations which were mostly enforced by the said principles, those of transparency and protection of the counterparty. However, it is a true fact that Mr. Johan Kunst, in his facsimile sent on 3 March 2003 to the [Buyer] seems to acknowledge that the combination of the material Dyneema SB31 with a specific design of some antiballistic vests could create some issues. Nevertheless, in no case could it be deemed that the [Seller], during the process and participation in the international tender and also during the execution of sales contract no. 46/2001 between itself and the [Buyer], intentionally omitted to notify of, even though it was aware of, due to its extended experience and know-how in the industry, the differentiations in the conduct of the material of Dyneema ® UD-SB31 as regards the design of the bulletproof vest and under which conditions and circumstances was that suitable, i.e., it could not sustain puncture, in order to mislead the [Buyer] as to the suitability of the material and thus persuade it to execute the relevant contract, since such an action presupposes that there was indeed an improper function of the above antiballistic material in this specific design of the bulletproof vest that the [Buyer] manufactured, which in this case, was not proved.

From the fact and only that the material Dyneema ® UD-SB31 is produced each year in thousands of tons or millions of meters and it is used as raw material throughout the world for the manufacturing of bulletproof vests, in many applications, from various specialized manufacturers, its completeness is presumed, at first, for any type of bullet-proof vest. The [Seller] not only did not violate the principles of good faith and transaction morals, as the [Buyer] alleges without legal grounds, but fully respecting and observing the obligations of transparency and protection of "EBO S.A." and the [Buyer] during the phase of negotiations, it clearly notified them, in Annex 4 of its offer dated 14 February 2000 for the order of the Ministry of Defense to "EBO S.A." that the material Dyneema ® UD-SB31 was a new product in the market not existing for a long period of time, and thus it had no data of actual experience, a fact that alone could lead to rejection, otherwise to endangering the selection of the offered antiballistic material of the [Seller].

Besides, from the review of the above facsimile sent by Mr. Johan Kunst, it is clearly concluded that he, with the pretext of the ballistic tests which were conducted in the ballistics station of "PYRKAL" on 30 October and 1 November 2002, focused on the problem of the combination of the specific design of bullet-proof vests and special ammunition used, which differ from those included in the specifications issue of the [Seller], pointing out that there was no connection between the quality of the material and the performance of the bullet-proof vests. However, in any case, even if we could assume that the above antiballistic material of the [Seller] responds differently regarding its design and the type of bulletproof vest, again, the obligation of transparency and protection of "EBO S.A." and the [Buyer] was not extended to this point, since the latter two companies ought to and could be informed of this fact by conducting their own thorough research (Supreme Court [...] 344/1982, Legal Podium [...] 30.1465, Court of Appeals of Athens [...] 8566/2007, Greek Justice [...]) 2008.841), given that both companies, according to their statutory object, had a similar extended experience and know-how, the [Buyer] had additionally commercially co-operated with the [Seller] during 1994, when it had purchased from the latter the unidirectional (UD) Dyneema, thus being aware of the exact specifications of the said material. Based on these thoughts, the action dated 21 December 2006 with Brief Deposit Number 11867/2006 of the [Buyer] against the [Seller], as regards its legal grounds which is founded in a pre-contractual liability and damages that the [Buyer] sustained due to execution of the sales contract no. 46/2001 under judgment are claimed, must be rejected as being groundless in substance.

From the counter-contractual [contract breaching] conduct of the [Buyer], the [Seller] sustained a positive loss which amounts to a total of 438,771.58, and consists of the sum of the invoices no. 13196/30 May 2002, 13439/19 July 2002 and 13440/19 July 2002 which concern orders for 5,641 m., 24,600 m. and 24,600 m. of the material Dyneema UDX SB31 that it delivered to the buyer, with respective prices of 53,175.29, 239,537.09 and 146,059.20, which Buyer owes with legal interest thereupon, from the day following the date agreed for their settlement (due payment date), i.e., on 29 July 2002 and 17 September 2002, respectively.

Besides, the declaration of the contract avoidance by the [Buyer], in relation to the 11th loading of the above sold quantity of 29,871 m. after the deduction of 40% of the advance payment, i.e., 290,856.22 was wrong, since the [Seller] fully complied with the requirements of the sales contract no. 46/2001 under judgment, and the actual reason, in accordance with the facsimile dated 11 February 2003, which the [Buyer] sent to the [Seller] was that it did not actually need them, thus [the avoidance declaration] not releasing both parties from their contractual obligations and the value of the material sold which was duly manufactured and offered by it was due for payment to the [Seller], without the said order being executed due to fault of the above Buyer company. Therefore, the [Seller] also sustained negative loss that amounted to 290,856.22 which corresponds to 60% of the total agreed price, which the [Buyer] owes along with legal interest from the day following the date it was extra-judicially notified by the [Seller], i.e., 26 September 2002. Consequently, the total positive and negative loss that the [Seller] sustained amounts to 729,627.80 (438,771.58 + 290,856.22).

Furthermore, it was proved that the [Buyer] being aware of the relevant clause incorporated in the offer of the [Seller] dated 14 February 2000 to "EBO S.A." under which it accepted to purchase the items of the material Dyneema UDX SB31 that would be left over the process (waste) for 5 German Marks per kg, dispatched to [the Seller], issuing the invoice -- weigh note No. C01/HMK/19 October 2004, via the transport company "SUPERTRANS - INTERNATIONAL FORWARDING & LOGISTICS ORGANIZATION" as shown in the invoice of the latter No. 0000076933/24 November 2004, out of the total quantity of approximately 125.000 meters delivered, a quantity of gross weight 4,522 kg and net weight 3,189 kg which was the net product after the process, which was shipped to sixteen customers and its total value amounted to 8,151.08, calculated for 2.56/kg which corresponded to the five (5) German Marks/kg and which the [Seller] has not yet settled.

However, despite the above offer of the latter to the [Buyer], no such clause was incorporated in the sales contract no. 46/2001 under judgment that they executed. Thus, given that in Article 9.2 of the said contract it was specified that it supersedes any other relevant document, it is clearly evident that the [Seller] had no contractual obligation to take over the quantity of the antiballistic material which would be left over from the process, paying the respective amount and, for this reason, it does not owe the amount of 8,151.08 to the [Buyer], which corresponded to the above quantity delivered to it, which, it should be noted, questions, claiming that it weighed 2,280 kg, as it can clearly be concluded from the letter of Mr. Josse Kunst to it, dated 4 November 2004.

Furthermore, the terms of the International Tender Notice for the procurement of antiballistic material with Protocol No 403/DM/ct/P255/24 January 2002, included, among other things, clause No 4.4, on the one hand, which provided that the persons participating in the tender, would bear the cost of the evaluation tests that would be realized for the selection of the supplier, and, on the other hand, clause 4.6, which prohibited the non-acceptance of the terms or the raising of claims by the participants. These clauses were accepted by the [Seller] since it filed its offer dated 14 February 2000 and participated in the ballistic tests realized on behalf of "EBO S.A." in November 2000 in the ballistic station of the Granfield University in England. Next the said center issued and dispatched to "EBO S.A." the invoice no. c 20299/20 November 200 requesting to be paid the amount of 10,927.50 for the ballistic tests, and indeed "EBO S.A." paid the said amount with a bank order in the Bank of Attica S.A. on 15 March 2001, as evidenced by the receipt voucher -- remittance no. 1803/16 March 2001 of the Bank of Attica to the said University. Thereafter, "EBO S.A." allocated the costs of ballistic tests to each participating company and the amount that corresponded to the [Seller] for 78 shots, was 4,680, notifying it at first on 5 February 2001 with its document under protocol number 31/210/ [...] and once again on 18 October 2001, with its relevant letter, in order for the [Seller] to immediately pay the above-mentioned participation cost. The [Seller], as it is clearly concluded by the letter of Mr. Kyriakos Sachanides dated 24 October 2001, accepted its debt. Due to assumption by the [Buyer] of the project for the manufacturing of bulletproof vests, "EBO S.A." assigned to it the above claim, notifying the [Seller] of this assignment on 22 February 2002, by means of its document under protocol number 312/AK/AG/Im, dispatching to it at the same time a copy of the results of the ballistic tests and a copy of the invoice that the Granfield University issued, inviting it to credit the amount of 4,580.00 which corresponded to 7,670.87 with the issuance of the relevant credit note on account of the [Buyer], so as to set it off with the existing debit balance. However, the [Seller] did not pay the above amount, which, after the alteration of the adjudicating claim of the action judged, it owes along with legal interest thereupon, from the date following the service of the action dated 21 December 2006, with Brief Deposit Number 11867/2006 of the [Buyer] against it.

Following the above actual events which were proved and in accordance with the above-illustrated thoughts:

      (1) The action of the [Seller] dated 28 July 2005 with Brief Deposit Number 7147/2005 against the [Buyer] [Seller's Claim, see paragraph 1.12.1 above] must be partially accepted as being grounded in substance and the Defendant [Buyer] must be forced to pay to the Plaintiff [Seller] the total amount of 729,627.80, out of which:

            (a) the amount of 53,175.29 along with legal interest thereupon from the day following 29 July 2002;

            (b) the amount of 239.537.09 along with legal interest thereupon from the day following 17 September 2002;

            (c) the amount of 146,059.20 along with legal interest thereupon from the day following 17 September 2002; and

            (d) the amount of 290,856.22 along with legal interest thereupon from the day following 26 September 2002.

As regards the motion requesting that the judgment be declared provisionally executory, given that it was not concluded that the [Buyer] enjoins the benefits of the State, the Court judges that there are no material grounds to enforce the provisional execution of the judgment or that delay in the execution of the judgment may cause substantial damages to the [Seller]. This is why the relevant motion must be rejected as being groundless in substance. The Court expenses for this action must be allocated based on the outcome (win and loss) of each of the opponents (Article 178 and 191, par. 2 of the Code of Civil Procedure) as specifically set out in the purview.

      (2) The action dated 21 December 2006 with Brief Deposit Number 11867/2006 of the [Buyer] against the [Seller] [Buyer's Claim see paragraph 1.12.2 above], must be partially accepted as being grounded in substance and it must be acknowledged that the Defendant [Seller] is obliged to pay to the Plaintiff [Buyer] the amount of 7,670.87 along with legal interest thereupon, from the date following the date of service of the action.

Finally, the court expenses for this action, must be allocated based on the outcome (win and loss) of each of the opponents (Articles 178 and 191, par. 2 of the Code of Civil Procedure) as specifically set out in the purview.

FOR THESE REASONS

The Court

-    Judges the action dated 28 July 2005, with Brief Deposit Number 7147/2005, the action dated 21 December 2006 with Brief Deposit Number 11867/2006, the garnishment dated 3 December 2007 with Brief Deposit Number 11608/2007 of the procedural guarantor and the additional intervention dated 25 February 2008 with Brief Deposit Number 2017/2008, with both opponents present.
 
-    Rejects whatever was judged in the rationale as being rejected.
 
-    Obliges the Defendant [Buyer] to pay to the Plaintiff [Seller] the total amount of 729,627.80, out of which (a) the amount of 53,175.29 along with legal interest thereupon from the day following 29 July 2002; (b) the amount of 239.537.09 along with legal interest thereupon from the day following 17 September 2002; (c) the amount of 146,059.20 along with legal interest thereupon from the day following 17 September 2002; and (d) the amount of 290,856.22 along with legal interest thereupon from the day following 26 September 2002.
 
-    Suspends the trial of the set-off objection, to the part thereof that refers to the rationale of this judgment, until the issue of a final judgment for the action dated 21 December 2006 with Brief Deposit Number 11867/2006 of the [Buyer] against the [Seller].
 
-    Imposes against the Defendant [Buyer] a part of the court expenses of the Plaintiff [Seller], which it sets at the amount of 25,000.00.
 
-    Accepts in part the action dated 21 December 2006 with Brief Deposit Number 11867/2006.
 
-    Acknowledges that the Defendant [Seller] is obliged to pay to the Plaintiff [Buyer] the amount of 7,670.87 along with legal interest thereupon, from the date following the date of service of the action.
 
-    Imposes against the Defendant [Seller] a part of the court expenses of the Plaintiff [Buyer], which it sets to the amount of 270.00.
 
-    Rejects the additional intervention dated 25 February2008 with Brief Deposit Number 2017/2008.
 
-    Imposes against the party additionally intervening, the court expenses of the opponent against whose the additional intervention is made, which it sets at the amount of 500.00.

The Court Reporter
(Signature)
Konstantinos Protonotarios "

4. OTHER CITATIONS

Case discussed in commentary by Dionysios P. Flambouras "Case Law of Greek Courts for the Vienna Convention (1980) for International Sale of Goods" (publication forthcoming in the Nordic Journal of Commercial Law).


FOOTNOTE

* Adjunct Lecturer (PD 407) in Civil Law, University of Athens (Dep. of Economics); Advocate of the Athens Bar, Solicitor in England & Wales; Member of M. & P. Bernitsas Law Offices. LL.M. (Brist.), M. Stud. (Oxon), Dr. Jur. in Civil Law (Athens). For comments: <dflamb@econ.uoa.gr>

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