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CISG CASE PRESENTATION

Spain 29 September 2010 Provincial High Court Asturias (Anchovies case)
[Cite as: http://cisgw3.law.pace.edu/cases/100929s4.html]

Primary source(s) of information for case presentation: CISG-Spain and Latin America website

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Case identification

DATE OF DECISION: 20100929 (29 September 2010)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial de Asturias sección 7ª

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Argentina

BUYER'S COUNTRY: Spain

GOODS INVOLVED: Anchovies (in brine)


UNCITRAL case abstract

SPAIN: Asturias Provincial High Court 29 September 2010

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/115],
CLOUT abstract no. 1125

Reproduced with permission of UNCITRAL

Abstract prepared by María del Pilar Perales Viscasillas, National Correspondent

A contract was concluded between an Argentine seller and a Spanish buyer for the sale of five containers of anchovies in brine to be delivered in two shipments. The Argentine party demanded payment of the price stipulated in the contract, specifically payment of the second invoice, which was outstanding, but the Spanish party refused to pay, since it considered the goods to be defective. The appeal court rejected all claims by the appellant (the seller).

The court of first instance considered that the goods supplied did not meet the conditions agreed in the contract, that the buyer had given notice of that lack of conformity within the time period established in the United Nations Convention on Contracts for the International Sale of Goods (CISG) and that goods other than those agreed upon had been delivered (aliud pro alio). Specifically, the court considered that the anchovies supplied by the seller were not of the type, size and quality required, since they were smaller than had been agreed, as a result of which a significant proportion were unfit for their intended use. The court's judgement was based on the goods inspection certificate produced by the average agent, the expert opinion issued by an animal specialist, the documentary evidence certifying delivery, which proved that the buyer had complained on a number of occasions about the small size of the anchovy supplied, and the seller's own offer to withdraw the goods.

The seller lodged an appeal against the court's judgement. The appeal judges examined in detail the terms of the sales contract, which contained very detailed provisions with regard to the type and size of the anchovy to be delivered by the seller. Although the court did not explicitly cite article 8(3) or 9(2) of CISG, it argued that "there is no legally established criterion for determining different types on the basis of the number of fish per kilogram and the price for each type, as a result of which market practice must be referred to; [that] each trader, on the basis of the number of fish in each haul (number of anchovies caught and their size), establishes the number of fish per kilogram according to type and the price for each type; [that] while those figures are not always the same, being established separately by each trader, they are nonetheless very similar -- there may be a difference of only $0.10 in price or 1 or 2 fish per type." However, it concluded on the basis of its examination that the different types of South American anchovy and their respective prices in the case under consideration were consistent with the documentation in the case file.

The court noted that the seller had demanded full payment for the goods ten years after the contract had been concluded and therefore could not expect the buyer to have retained the goods. However, having assessed the evidence available, namely the certificate issued by the inspection agency and the expert evidence, the court concluded that the goods had not been in conformity with the contract, given that the buyer had had to set the bulk of them aside for conversion into fish flour for use in animal feed.

The seller's claim was based on article 336 of the Commercial Code, according to which a buyer has four days to report any defects in wrapped or packaged goods received. The court considered, however, that that provision was not applicable, firstly because the case was one of aliud pro alio (the delivery of something different from that which was agreed upon), and secondly because CISG was applicable law in Spain and Argentina. The court considered in the light of articles 39 and 50 that the buyer had complied with the provisions of article 39 since it had lodged its complaint within approximately four months of receipt of the goods, a period of time that could be considered more than reasonable in view of the quantity and nature of the goods in question, once it had determined that the serious defect relating to the size of the anchovy was present in the bulk of the goods, and had given notice, within two years, of its refusal to pay the rest of the second invoice, the sum of which was now being claimed. The court therefore considered that the complaint was in accordance with article 39 of CISG, since the case involved a large quantity of perishable goods in brine, a sizeable proportion of which would have been at risk of being beyond salvaging if all the containers had been opened at once. The court therefore considered it logical that the defendant had taken approximately four months from the time of receipt of the goods to lodge its complaint.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 8(3) ; 9(2) ; 39 ; 50

Classification of issues using UNCITRAL classification code numbers:

8C [Interpretation in light of surrounding circumstances];

9B [Implied agreement on international usage; standards];

39 [Requirement to Notify Seller of Lack of Conformity: Sanctions];

50 [Reduction of Price]

Descriptors: Interpretation of Convention ; Standard terms and conditions ; Lack of conformity notice, timeliness ; Reduction of price, remedy of

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Spanish: CISG-Spain and Latin America website <http://turan.uc3m.es/uc3m/dpto/PR/dppr03/cisg/respan88.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://turan.uc3m.es/uc3m/dpto/PR/dppr03/cisg/sespan88.htm>; WestlawEs (2010/385754)

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated March 20, 2012
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