Slovak Republic 9 March 2011 District Court in Trnava [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/110309k1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 9Cb/77/2010
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Slovak Republic (defendant)
GOODS INVOLVED: [-]
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
11A ; 11B [Writing or other formality for conclusion of contract ; Proof of contract by any means]; 59A ; 59B [Payment due at time fixed or determinable by contract or Convention ; No need for request by seller or other formality]; 78A [Interest on delay in receiving price or any other sum in arrears]
11A ; 11B [Writing or other formality for conclusion of contract ; Proof of contract by any means];
59A ; 59B [Payment due at time fixed or determinable by contract or Convention ; No need for request by seller or other formality];
78A [Interest on delay in receiving price or any other sum in arrears]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Slovak): Unavailable
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
9 March 2011 [9 Cb/77/2010]
Translation [*] by Juraj Kotrusz [**]
IN THE NAME OF THE SLOVAK REPUBLIC
The District Court of Trnava, decided by a single judge, JUDr. Martina Valentova, in the case of Plaintiff M., S r.l. [Seller], with its registered office in V.L.D.L., ___, Republic of Italy, ___, versus Defendant S., s.r.o. [Buyer], with its registered office in B.B. ___, [Slovak Republic], regarding payment of 14,642.50 Euro [Eur] and appurtenances
h a s d e c i d e d a s f o l l o w s:
The court dismisses the action.
[Seller] is obliged to pay [Buyer] the sum of 878,50 EUR as reimbursement of costs of the proceedings within three days after the judgment comes into force.
[Seller] claimed, by its action filed with the court on 3 July 2009, its right to payment of 14,642.50 EUR with appurtenances as the unpaid purchase price for delivered goods.
The court upheld the action by issuing the order to pay of 5 May 2010, rec. no.: 37Rob 40/2009-62 which was subject to protest by [Buyer] who objected to delivery of the goods, as no certificates of receipt were presented by [Seller]. [Seller] interpreted due dates specified in the invoices merely as invoice dates; the invoices did not contain any due dates or dates of delivery of goods whatsoever. [Buyer] pointed out that the business relationship between the parties was insured and therefore [Seller]'s claim should have been settled by the insurance.
The court gathered evidence by reading the submitted documents and tried the case in absence of the parties in accordance with sec. 101 part 2 of the Civil Procedure Code (hereinafter referred to as "CPC") and with respect to [Buyer] also in accordance with sec. 48 part 2 of the CPC and thereby determined the following factual and legal circumstances of the case.
[Seller] claims a right to payment of the purchase price for the goods that were, according to [Seller], delivered to [Buyer] in the amount and quality prescribed in a purchase order. [Buyer] was therefore obliged to pay the price asserted by invoices no. 2604 of 07 September 2009 for the sum of 4,665.75 EUR, no. 3027 of 27 September 2007 for the sum of 5,469.75 EUR, no. 3255 of 12 October 2007 for the sum of 3,525.- EUR and no. 3425 of 30 October 2007 for the sum of 1,461.- EUR. [Seller] also pointed out that it lowered the claim by drawing two credit notes for a total sum of 479.- EUR. [Buyer] defaulted on the invoice payments and [Seller] therefore also claims a right to default interest on the sum under sec. 369 of the Slovak Commercial Code.
[Seller] presented the only evidence - invoices to support its argument that it delivered the goods to [Buyer]. It also submitted other documents, but provided no explanation for them and [Seller] had created them all. No other documents proving the delivery of the goods were presented to the court and [Seller] did not propose any further evidence to be taken.
Under article 5 part 1 a) b) of the Council Regulation no. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the person domiciled in the Member state (including the registered office or the place of business) may, in another Member State, be sued in matters relating to a contract, in the courts for the place of performance of the obligation where in such case, unless otherwise agreed, the place of performance of the obligation in question shall be 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.
Since the place of delivery of the goods - object of the contract, i.e. the place of performance of the obligation was in T., Slovak Republic, the court has jurisdiction to try this case.
Under the first sentence of article 3 part 1 of the Regulation no. 593/2008 of the European Parliament and Council on the law applicable to contractual obligations, a contract shall be governed by the law chosen by the parties.
Under article 4 part 1 a) of the abovementioned regulation, the contract of sale shall be governed by the law of the country where the seller has his habitual residence.
Under article 1 of the Convention on Contracts for the International Sale of Goods published under no. 160/1991 Coll., this Convention applies to contracts for the sale of goods between parties whose places of business are in different States when the States are Contracting States.
Under article 11 of the Convention, a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.
Under article 59 of the Convention, the buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller.
Under article 78 of the Convention, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.
Under sec. 120 part 1, part 3 and 4 of the CPC, the parties are obliged to submit evidence proving their arguments. The court will then decide which of the submitted evidence will be considered. Unless the case concerns issues enumerated in paragraph 2, the court can consider the factual circumstances that neither party opposes. The court shall instruct the parties, that beside the issues prescribed in paragraph 2, all evidence has to be submitted before the court decides that the gathering of evidence is finished, and in matters tried without a public hearing (sec. 115a), the evidence must be submitted before the court decides the case, since the court will not accept any evidence presented later. The factual circumstances and evidence presented after this moment can only justify an appeal, if qualified under sec. 205a.
The court held that [Seller] did not sustain the burden of proof with respect to the factual grounds of the case. The court came to this conclusion after considering the evidence gathered, primarily the documents submitted to the court (invoices asserting the right to purchase price) and [Buyer]'s opposition, its argument that no evidence proving actual delivery of the goods was provided. [Seller] did not provide or propose any further evidence in connection with this argument, despite being repeatedly urged by the court to do so in calls from 15 November 2010 and 28 January 2011, which were attached to the summons. Furthermore, the [Seller]'s legal representative stated in his motion from 7 March 2011 (filed after receiving the abovementioned calls from the court), when excusing his absence at the hearing ordered on 9 March 2011 that [Seller] does not possess any further evidence with respect to its claim and therefore asked the court to decide the case upon the evidence submitted so far.
The burden of proof is a procedural obligation placed on one of the parties that will result in denial of its claim if the arguments the party provides are not supported by sufficient evidence. The scope of the burden of proof is always defined by the substantive law applicable to the case. Therefore, if [Seller] claimed it was owed payment of the purchase price for the goods delivered, it bears the burden of proof with respect to its argument that the contract was concluded and that the goods were actually delivered to [Buyer], for which the purchase price is claimed.
The evidence in this case did not sufficiently prove the existence of the claim for the purchase price, as [Buyer] objected to [Seller]'s assertion that the goods in the amount and quality claimed by [Seller] were delivered to [Buyer] and since the obligation for payment of the purchase price emerges at the time of delivery of the goods, the court could not uphold such claim. Mere presenting of invoices by which [Seller] asserted its right to payment of the price without providing any other evidence proving actual delivery of the goods was not sufficient for the court to conclude that [Seller] did actually deliver the goods to [Buyer] in the quality and quantity as claimed in the invoices.
The court therefore dismissed [Seller]'s action, as it did not prove existence of its claim.
The Court ruled on the reimbursement of the costs of the proceedings with reference to sec. 142 part 1 of the CPC and granted [Buyer] full reimbursement of its costs, as it was successful in its defence against the action in its entirety.
Instruction: An appeal against this judgment must be filed via this Court within fifteen days from its receipt.
District Court Trnava, 9 March 2011
JUDr. Martina Valentova, Judge
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the Republic of Italy is referred to as [Seller] and Defendant of the Slovak Republic is referred to as [Buyer]. Amounts in the currency of the European Union (Euro) are indicated as [Eur].
** Juraj Kotrusz is a Slovak lawyer who studied law at the University of Trnava, Slovakia, and at the Hague Academy of International Law. He is the Editor of the CISG Slovakia website.Go to Case Table of Contents