Spain 13 May 2014 Audiencia Provincial de Barcelona [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/140513s4.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 241/2014 [JUR\2014\178025]
CASE HISTORY: Court of First Instance No.3 in Mataró, 15 June 2012
SELLER'S COUNTRY: Italy
BUYER'S COUNTRY: Spain
GOODS INVOLVED: Floor scrubbing machines for industrial use
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
7A3 [Observance of good faith]; 9C [Practices established by the parties (art. 9(1))]
7A3 [Observance of good faith];
9C [Practices established by the parties (art. 9(1))]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spanish website <http://www.cisgspanish.com/wp-content/uploads/2014/08/SAPBarcelona13mayo2014.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [first draft]
The CISG Translation Network
Barcelona (16th Section) Ruling number 241/2014 dated 13 May 2014
Translation [*] by Ximena Fernández Noreña [**]
SPEAKER: Illustrious Mr. Jordi Seguí Puntas
BARCELONA PROVINCIAL COURT
SCROLL NO. 37/2013-B
ORDINARY TRIAL NUMBER 1250/2011
FIRST INSTANCE COURT OF APPEALS 3 MATARÓ (ANT. CI-4)
RULING NO. 241/2014
MR. JORDI SEGUÍ PUNTAS
MME. INMACULADA ZAPATA CAMACHO
MME. MARTA RAYO AYEZCUREN
In the city of Barcelona, 13 May two thousand fourteen.
SEEN, on appeal, before the Sixteenth Section of this Provincial Court, ordinary trial number 1250/2011’s documents regarded by the First INSTANCE COURT OF APPEALS 3 MATARÓ (ANT. CI-4), at the request of [Buyer], hereby represented by MME. Laia Gallego Uriarte, against [Seller] hereby represented by MR. Alejandro Font Escofet. These proceedings are undertaken before this Court due to the appeal brought forth by [Buyer], against the Ruling rendered 15 June 2012 by the Magistrate-Judge of said court.
FIRST.- The disposition of the appealed judgment is the following:
In assessment of the suit brought forth by [Seller] against [Buyer] I hereby condemn the [Buyer] to pay the amount of 51.365,60 euros, moratorium interests set forth by Law 3/2004, regarding measures against moratorium in commercial operations, from the date of expiry of each of the invoices, and trial costs."
SECOND.- [Buyer] brought forth an appeal against the previous judgment by means of a founded writ, transferred to [Seller] which opposed the appeal by means of a founded writ. Appeals were raised to this Provincial Court which proceeded to commence proceedings setting the voting and ruling date for 6 may 2014.
THIRD.- All legal requirements have been observed and followed in the present proceedings.
The Illustrious Mr. Magistrate JORDI SEGUI PUNTAS, SPEAKER.
The Italian [Seller] claims payment of the Price of a series of sales of goods (industrial use pavement scrubbing machines) convened on 2010 with [Buyer], domiciled in El Masnou.
[Buyer] opposes [Seller’s] monetary pretension, claiming that lack of translation of the invoices attached to the suit to an official language in Spain and lack of "simple delivery notes" left it no choice that to adamantly oppose, "in order to avoid duplicity of future claims".
No evidence other than the private documentary evidence attached to the suit was assessed ([Buyer] did not make an administrative appeal against the Tribunal’s denial of the evidence proposed during the preliminary hearing), having definite ruling which regards the integrity of the [Seller]’s claim, understanding that the aforementioned documentary evidence is sufficiently revealing of [Buyer’s] credit notwithstanding it being drafted in the Italian and English languages, particularly when complemented by various emails attesting to the sale and the lack of payment.
[Buyer] appeals said ruling.
The bulk of the appeal is set to highlight the breach to article 114 of the Law of Civil Prosecution (LCP) in which the first instance ruling might have incurred, since it gave evidentiary value to documents drafted in the Italian and English languages that lacked any translation into the Spanish or Catalan language.
As per principle, "all documents drafted in a language other than Spanish, or as the case may be, the language of the Autonomous Community at issue" must be accompanied by the corresponding translation, albeit private, failing which they will lack all evidentiary efficacy. (article 144.1 LCP and STS 10 October 2005)
The invoices and delivery notes (the so-called DDT serve as delivery notes since they reflect the formalization of international transport of the goods from the [Seller’s] premises in Verona to their destiny in the [Buyer]’s premises in El Masnou) in which [Seller’s] claim is sustained are drafted in both English and Italian language, and are not accompanied by the corresponding Spanish or Catalan translations.
That regardless, that the circumstances of the case add to their full evidentiary relevance.
It must be affirmed that the lack of translation of a document drafted in a non-official language constitutes a mere formal irregularity, so that its radical loss of procedural efficacy is to be connected with the effective existence of a defenseless situation for the party against whom the document in question is argued. Such is inferred from the 24 March 2008 STS, which does not hesitate in granting evidentiary effect to a waybill drafted in the Italian language since the Spanish [Buyer] had consented to the issuance of said document in said language, otherwise of easy comprehension.
In the case at hand there is no such defenseless state for the [Buyer], which to be sustained a premise must be established that, given the quality and nationality of the parties and the goods exchanged, the undisputed business relationship between [Seller] and [Buyer] integrates a succession of international sales of goods.
As a result, the relationship is subject to what is set forth by the United Nations Convention of 11 April 1980 regulating the international sale of goods, which has been adhered to by both Spain and Italy, one of which’s tenets consists in the interpretation of its articles being done from the perspective of the operation’s international character, so as to impose the observance of good faith in international trade (article 7); said legal body also states that the parties are obligated "by any usages" and "by any practice" which they have established between themselves, to the point of considering any usage which they had or should have had knowledge of and which is widely known in international trade and is regularly observed by the parties in contracts of the same kind in the trade of the goods in question, tacitly applicable to the contract.
Hence, in the case at hand the [Buyer] in not questioning the receipt of various extrajudicial payment requirements from the [Seller], therefore it can be presumed that the original notices and invoices that are now being objected were received, without any objection regarding their being drafted in the Italian and/or English language.
On the other hand, it is to be noted that the latter in actuality constitutes the lingua franca of international commerce; the own [Buyer] acted in that conviction, since the e-mail sent by Carmela on 23 November 2009 to its contact in [Seller] regarding the performance of a wire transfer, was accompanied by the proof of payment drafted precisely in the English language.
Thus, independent of Juana’s linguistic knowledge, [Buyer’s] alleged manager, who –in use of the terms used in the reply to the claim- managed the [Buyer’s] "day to day" were in condition to fully identify the products listed in the claimed invoices (in addition, the identification contains individualized numeric references), regardless that, pursuant to the tacitly convened usage, the written part of these commercial documents was drafted in English and eventually in Italian.
Lastly, the inconsistency of the [Buyer’s] defense is evidenced with the mere confirmation that Juan Alberto, acting on behalf of [Buyer], on his email of 29 October 2010, the day after the expiry of the penultimate of the claimed invoices, offered a "payment plan", and there is no sign that said tacit debt acknowledgement follows a different commercial operation form the ones contained in the six invoices already defaulted by that date.
Costs from the appeal must remain at [Buyer’s] cost as ordered by article 398.1 LCP, as well as the loss of the appeal deposit (additional disposition 15TH LOPJ, as per draft by the Organic Law 1/2009).
To the effects of article 208 of the Law of Civil Prosecution (LCP) it is indicated that the present ruling- ruled in an ordinary ruling of a value inferior to 600.000 euros- allows an appeal so long as the ruling contains an appeal interest, and extraordinary review before the Supreme Court due to procedural infraction, or before Catalonia’s Court of Justice if the appeal is based, exclusively or together with, in the infraction of norms from the Catalan civil law, pursuant to articles 477.2, 3 and 478.1 and final 16th disposition of the LCP, in its wording as per Law 37/2011 of 10 October, regarding procedural streamlining measures and articles 2 and 3 of Law 4/2012 of 5 March, regarding the appeal in civil proceedings in Catalonia.
All quoted legal precepts and other of general and pertinent application have been seen.
Given the dismissal of the appeal brought forth by [Buyer] against the ruling dated 15 June 2012 issued by the First Instance Tribunal number 3 in Mataró, resulting from the present indictment, we hereby integrally confirm said ruling, with imposition of appeal costs to the [Buyer] as well as loss of the appeal deposit.
The present ruling is not binding and it allows both appeal and extraordinary review due to procedural infraction before the Supreme Court or Catalonia’s Court of Justice, to be brought forth in writing before this Tribunal within the term of twenty days counting form the day following its notification.
The resolution is binding and a copy of it and the original file is to be sent to the Tribunal of origin to the opportune effects.
By this ruling, of which certification will be added to the scroll, it is so pronounced, mandated and signed.
PUBLICATION.- Barcelona on the same day as dated, and once signed by all issuing Magistrates, the previous sentence is given the publicity ordered by the Constitution and the Laws. I ATTEST.
* All translations should be verified by cross-checking against the original text.
** Ximena Fernández Noreña is a Universidad Panamericana law school graduate, currently practicing Corporate and Finance Law in Mexico City.Go to Case Table of Contents