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Spain 20 May 2014 Audiencia Provincial de Badajoz [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/140520s4.html]

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

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Case identification

DATE OF DECISION: 20140530 (20 May 2014)


TRIBUNAL: Audiencia Provincial de Badajoz

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 109/2014 [JUR\2014\180201]

CASE NAME: Unavailable

CASE HISTORY: Court of First Instance no.2 Almendralejo, 2 September 2013




Classification of issues present



Key CISG provisions at issue: Articles 23 ; 35 ; 38

Classification of issues using UNCITRAL classification code numbers:

23A [Contract concluded when acceptance becomes effective];

38A [Buyer's obligation to examine goods]

Descriptors: Acceptance of offer, Examination of goods

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Editorial remarks

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Citations to case abstracts, texts, and commentaries


(a) UNCITRAL abstract: Unavailable

(b) Other abstracts



Original language (Spanish): CISG-Spanish website <http://www.cisgspanish.com/wp-content/uploads/2014/07/SAPBadajoz20mayo2014.pdf>

Translation (English): Text presented below



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Case text (English translation) [first draft]

The CISG Translation Network


Badajoz (3rd Section) Ruling number 109/2014 dated 20 may 2014


Translation [*] by Ximena Fernández Noreña [**]

Contractual responsibility
Jurisdiction: Civil
Appeal 383/2013
SPEAKER: Illustrious Mrs. Juana Calderón Martín

RULING: 00109/2014

Civil appeal no. 364/2012
First Instance Court no. 2 Almendralejo
In Merida, 20 may 2014.

SEEN on appeal before the Third Section of this Provincial Court Record no. 364/2012. From the first instance Court number 2 Almendralejo, being parties: [Buyer] as appealer hereby represented by Mrs. Mena Núñez, and defended by Mr. Rubio Esteban, as appealed, and [Seller] hereby represented by Mrs. Ruíz Díaz and defended by Mr. Monsalve Castillo.


FIRST. We hereby accept the proceedings and background in the ruling appealed, issued on 2 september 2013 by the First Instance Judge no. 2 of Almendralejo.

SECOND. The referred ruling includes the following:

"I hereby dismiss the suit brought forth by Mme. Yolanda Mena Núñez, on behalf of [Buyer against [Seller] AND ABSOLVE [SELLER] OF THE OPPOSING CLAIMS.


THIRD. Against the referred ruling an appeal was brought forth, in due time and manner, by [Buyer’s] representatives, which was allowed and notified to the [Seller] for its challenge or adherence, by [Seller’s] representatives, the corresponding writ was filed and the confirmation of the appealed ruling was expressed, after which the file was transferred to this Tribunal, where the Court scroll was prepared, followed by its proceedings.

FOURTH. All legal requirements have been met in the proceedings of this appeal.

SEEN with the Illustrious Mme. Magistrate Juana Calderón Martín as speaker.



The appealed judgement sets aside the claim brought forth by [Buyer] against [Seller], which sought the avoidance of the contract entered into by the Parties on 27 September 2011, due to a breach by [Seller], as well as payment by the latter of the amount of 984.000 euros in damages caused to [Buyer] as a result from the breach and avoidance of the contract.

In their thorough appeal [Buyer] contests the judgement claiming a mistake in the appreciation of the proof, illogic and arbitrary interpretation of the contract and error of law due to an infraction of legal and jurisprudential norms.

Regarding the first motive, it should be pointed out that, regarding assessment of evidence and as this chamber has reiterated, following the pacific jurisprudential doctrine, the amplitude of the appellate recourse certainly allows the Tribunal "ad quem" to examine the object of the suit with the same authority as was done by the "ad quo" judge., thus not being obligated to respect, in principle, the facts the judge declared as proven since they do not reach the inviolability found in other recourses as the extraordinary, and specifically the appeal. Which is no less true, and should be remembered as such, is also reiterated jurisprudential doctrine that, when the question in debate by means of an appeal is, definitively, the assessment of evidence carried out by the judge of the instance over the basis of the activity developed in the oral hearing, the observance of the principles of immediacy, orality and contradiction to which said activity is submitted lead to the fact that, as a general rule, singular authority should be granted to the appreciation of proof carried out by said judge, before whom it was carried out, this because the judge "ad quo" and not the reviewing tribunal, much less the appellate court, has the special and exclusive authority to intervene in the practice of proof and assessment of its results, which justifies having to respect- in principle- the use the judge made of its capacity to assess the evidence set forth during the process, so long as the assessment process is adequately motived or reasoned in the judgement, in a way that the assessment criteria is to be rectified when the requiring party sets forth an evident failure in the logic reasoning or inductive "iter" of the instance judge, or when arbitrary and absurd conclusions are reached. Except in those cases it is fully sovereign to attribute more weight to some witness statements over others, and to attribute higher [forensic] value to one over the other, and even- within specific rules found in the Law- grant importance to certain documents, regardless if questioned to the contrary; since that constitutes part of what is judicial assessment of evidence, as found in judgements 169/90, 211/91 and others by the Constitutional Court.

Stemming from the previous doctrinal consideration, after the mandatory review the Court, cannot appreciate in any way a mistake in the assessment as is claimed, with the judgement containing a detailed, exhaustive and on point analysis of the assessment carried out, which we share in its entirety.

The [Buyer] holds that the judgement failed to give appropriate relevance to the communication issued on 1 December 2011, requesting performance of the contract, or to the following communication issued on January 2012 regarding the avoidance of the contract, as well as to the silence of [Seller] regarding said communications; moreover, it questions both Parties’ witness statements’ assessments and the documentary evidence regarding the situation and evolution of the prices of wine on the season in which the contract was concluded, as well as regarding the insufficient delivery of wine samples and the tacit acceptance of the [Seller].

The notarial requirements or communications to which the [Buyer] refers, far from being unknown or oblivious by the instance judge, have been regarded, but not in isolation, , but in conjunction with the rest of the proof, especially relating them to a previous communication, via fax, which the [Seller] sent to the [Buyer], whereby it was required to either accept or show its conformity with the wine samples sent shortly after the conclusion of the contract, so as to begin delivering the instalments agreed. Had the [Seller] sent the red wine samples, without any objection neither regarding the number of bottles sent, nor regarding the fact that they were solely red wine, and if, on 27 October 2011 (a month after concluding the Contract), it is the [Seller] who shows its will to perform the agreed proposing delivery mode for the first shipment of three million litres of wine, it is not in any way illogic or arbitrary to conclude that the [Seller]’s attitude is sufficiently expressive of its intention to perform the agreed. The silence claimed by the [Buyer] is not so, to the contrary, it was the [Buyer] who remained silent from the communication sent on 27 October up until a month later, when the delivery requirement is sent for the shipments corresponding to the months of October, November and December 2011, without even communicating –no proof against has been shown- that it agreed on the quality or characteristics of the samples received.

At this point we connect to the [Buyer’s] allegation which questions the conclusion reached by the judgement regarding lack of proof on the acceptance, not even tacit, of the samples received. If we take in to account that that from acceptance depended, the existence of the [Seller’s] delivery obligation, and having had a concrete written notice received by the Buyer, in which the [Seller] showed its will to deliver the first wine shipment, to no answer from the Buyer, we consider that said silence-which was upheld until 1 December 2011-, the value of a tacit acceptance of the samples, is not but a wilful conclusion of the [Buyer] which when adjusted to the concrete circumstances in which matters developed after the conclusion of the contract, in addition to being contrary to commercial trade, which demands, precisely in order to streamline transactions, to unequivocally express which are the Parties pretences both in previous dealings and negotiations, as in all matter which, afterwards, are relevant regarding the conclusion, performance or consummation of the contract; the [Buyer] complains of the [Seller]’s silence – silence which is not so, as has been previously reasoned- , but, at the same time, it pretends that its own silence and a communication (the afore-mentioned 1 December 2011, certainly belated and subsequent to acts clearly proven by the [Seller] which showed its will to commence performance of the Contract) are given tacit acceptance effects regarding the received samples, acceptance which, given the generality of the terms of the Contract regarding the conditions to be met by the wine, it is shown as of relevant incidence to the effects of the concretion and delimitation of the Parties’ obligations (delivery by the [Seller], and correlatively, payment by the [Buyer]).

Regarding the alleged insufficiency of the wine samples, due to the lack of white wine samples, again we turn to what is reasoned in the judgement which, after pointing out what was stated by witnesses on this matter, assesses these statements in order to, with certainty, conclude that, starting from the vagueness of the Contract, which neither specifies to that extent nor does it specify the conditions on acidity and gradation of the wine , and relating to the imprecision of the volume of wine object of the sale, the extension of the Contract’s performance term- deliveries from October 2011 until July 2012- , and the more precise terms of previous contracts between the Parties, concludes that the initial delivery of wine samples of all shipments did not constitute an essential element; the witnesses mentioned in the judgement affirmed, in addition, that the habitual usages and practices in the trade regarding sales operations as the one in had were to send samples, successively, of each of the deliveries to be sent across the agreed time.


In the second motive of the appeal, an illogical and arbitrary interpretation of the Contract is denounced since the judgement demands an express and written manifest of acceptance of the samples, and because it deals with the Contract as if it were a sale with the simultaneous delivery and payment of the price when successive instalments were foreseen.

The motive is dismissed. The interpretation of the Contract, regarding what is set forth in art. 1281, is in no way illogical or arbitrary, since, stemming form the literality of the Contract, which, as was stated is highly sparing and certainly vague in its precisions, and regarding previous and posterior actions of the Parties, as well as habitual practice followed in their previous dealings, it is not contrary to logic to assess that a precise and clear acceptance of the samples received in order to perfect the Contract, regarding the fact that the Contract was correctly qualified as a sales subject to sample, and therefore, subject to a suspension condition regarding the perfection of the Contract, or, if willed, to the effects of commencement of its execution, which is not incompatible with successive deliveries, for if at the time of the first delivery the condition of acceptance of the samples, the [Buyer] cannot in any way demand the [Seller] to perform successive deliveries agreed across time. Definitively, if at the time of commencement of the actions proper to the performance of the Contract, it is verified that the [Buyer] did not manifest acceptance to the samples sent, and to the contrary, if the [Seller] showed its intent to perform what it was obligated to- sending samples and express requirement of acceptance- , it cannot but be concluded that the [Buyer’s] request for the avoidance of the Contract and payment of damages was correctly dismissed.


Neither is a breach to any law, since the instance judge applied the 11 April 1980 Convention on Contracts for the International Sale of Goods regarding the formation of the contract and execution when the sale is carried out by means of an offer and an acceptance; because in this case the sale was subject to the suspension condition consisting on the necessary acceptance of samples, in the terms agreed, and this acceptance of samples differs in effects to the acceptance referred to in art. 23 of the referred Vienna Convention, which established it as the last act in the formation of the contract. Precepts from the Commerce and Civil Codes which the judgement applies (arts. 328 and 1453) are in those matters in which the Vienna Convention refers to national law.

The sale was correctly qualified as a sample sale, in so far as that the Parties agreed the sale of generics not in their view, and which could not be classified for a determined amount, as well as the fact that the [Buyer] should accept or give its conformity to the samples sent by [Seller]. The duty of the [Buyer] to manifest its conformity with the goods, and the [Seller’s] correlative to demand the [Buyer’s] expression of conformity with the goods derives from the Vienna Convention (art. 35), so the brief term to manifest said conformity is also set forth in art. 38.1 of the Convention.

As has been set forth in the first rationale of this resolution, proof that it was practiced manifestly set forth that the [Buyer] did not correctly perform its obligation to accept the samples, consequently, there was no obligation to pay the price to the [Seller], so that the avoidance of the Contract intended through the communication of 12 January 2012 sent to the [Seller] cannot be found as legally based, since a previous breach is evident- in addition, essential, regarding the acceptance of the samples within a reasonable term, and in any case, brief- from who pretended to avoid the Contract.


The costs of the appeal are imposed to the [Buyer], pursuant to what is set forth in art. 398 of the L.E.C.

Having seen the cited articles and others of general and particular application.


Dismissing the appeal brought forth by [Buyer’s] legal representatives against the ruling issued on 2 September 2013, by the First Instance Tribunal no. 2 Almendralejo, in the file of ORDINARY TRIAL no. 364/2012, WE INTEGRALLY CONFIRM the above ruling, with the imposition of appeal costs to [BUYER].

Notify this resolution, against which no ordinary appeal is allowed, to the parties.

Return the file to the tribunal of origin, with testimony of what was ruled, in order to proceed to execution and performance, filing the original in the Section’s Record of civil rulings.

By this ruling, definitely judging, we pronounce, send and sign it.


* 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.

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