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CISG CASE PRESENTATION

Spain 17 March 2011 Supreme Court (Coffee case)
[Cite as: http://cisgw3.law.pace.edu/cases/110317s4.html]

Primary source(s) of information for case presentation: CISG Spanish website

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Case identification

DATE OF DECISION: 20110317 (17 March 2011)

JURISDICTION: Spain

TRIBUNAL: Tribunal Supremo (sección 1ª sala de lo Civil)

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Judgment no. 120/2011 [Appeal no. 2039/2007]

CASE NAME: Unavailable

CASE HISTORY: Court of First Instance, no. 4 in Torremolinos (Málaga) 3 September 2007

SELLER'S COUNTRY: Spain

BUYER'S COUNTRY: Spain

GOODS INVOLVED: Coffee


UNCITRAL case abstract

SPAIN: Supreme Court, Section 1,
[Judgement No. 120/2011] 17 March 2011

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/142],
CLOUT abstract no. 1346

Reproduced with permission of UNCITRAL

Abstract prepared by María del Pilar Perales Viscasillas, National Correspondent

One of the parties alleged a breach of CISG article 58 (1), maintaining that the price was not payable, since the goods had not been delivered. The facts of the case showed that the parties had been in regular contact since 2000 and since that time large quantities of coffee had been bought and subsequently sold on.

The procedure followed by the parties was that:

-    The buyer contracted, by telephone, to buy a large quantity of coffee at a price to be determined within a previously agreed range, in accordance with price movements in the composite index of the International Coffee Organization in London, plus a fixed supplement per ton of coffee;
 
-    Once the seller had shipped the goods, the buyer sold the product to third parties and then proceeded to set the price to be paid in accordance with the agreement;
 
-    In order to take delivery of the goods in question, the previous payment had to have been made, so the seller consigned the forwarder's bill of lading to the buyer's bank, which then made a payment.

In the course of one of these transactions, when the buyer was in financial difficulties and was unable to pay the seller, the seller agreed to recover the payment directly from the buyer's customers. The intended recovery was, however, unsuccessful, so the seller brought an action against the buyer for the amount that was owing. The buyer refused payment on the grounds that it was not actually a buyer but simply an intermediary that worked as a broker and, in the event of its being considered a buyer, it did not owe anything because the goods had not been delivered.

Both the courts of first instance and the Appeal Court considered that the contract between the parties was an international sales contract. The Supreme Court confirmed the interpretation adopted by the previous judgements, on the basis of their interpretation of the contract and the intent of the parties. It therefore ruled that CISG articles 8 (2) and 8 (3) applied, citing also in support of its ruling article 5: 101 of the Principles of European Contract Law and articles 4 (1) and 4 (2) of the Principles of the International Institute for the Unification of Private Law (UNIDROIT).

With regard to the breach of CISG article 58 (1), the buyer claimed that it had not received either the goods or the documentation referring to them, for which reason it had not complied with the order to pay the price. The Supreme Court dismissed this claim and ordered the buyer to pay the price, given that payment to a third party — a creditor or the creditor's authorized representative — was the general rule under Spanish law (Civil Code, art. 1162).

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 8(2) and 8(3) ; 58(1)

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spanish website <http://www.cisgspanish.com/wp-content/uploads/2013/07/STS17marzo2011.pdf>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated August 26, 2014
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