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CISG CASE PRESENTATION

Argentina 23 October 1991 National Commercial Court of First Instance, Buenos Aires (Aguila Refractarios / Conc. preventivo) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/911023a1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19911023 (23 October 1991)

JURISDICTION: Argentina

TRIBUNAL: Juzgado Comercial Nacional de Primera Instancia en lo Comercial No. 10, Buenos Aires

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Aguila Refractarios S.A. / Conc. preventivo

CASE HISTORY: Unavailable

SELLER'S COUNTRY: U.S.A./Brazil (plaintiffs)

BUYER'S COUNTRY: Argentina (defendant)

GOODS INVOLVED: Unavailable

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 9(2) ; 78

Classification of issues using UNCITRAL classification code numbers:

9B [Implied agreement on international usage];

78B [Rate of interest]

Descriptors: Usages and practices ; Interest

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=184&step=Abstract>

Italian: Diritto del Commercio Internazionale (1997) 719-720 No. 127

CITATIONS TO TEXT OF DECISION

Original language (Spanish): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=184&step=FullText> [excerpt]

Translation (English): Excerpt presented below

CITATIONS TO COMMENTS ON DECISION

English: Behr, 17 Journal of Law and Commerce (1998) 266-288 [abstracts and comments on 29 interest rulings from 10 countries (this case presented at 267: "According to an [Argentine court], it is 'international usage' to fix the rate of interest according to the prime rate if the debt was in U.S. dollars")]; Gillette, 39 Virginia Journal of International Law (1999) 707 [715 n.28]; Kizer, 65 University of Chicago Law Review (1998) 1279-1306 [comments on interest rulings in this case and other cases]; Liu Chengwei, Recovery of interest (November 2003) n.253; Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 9 para. 21 Art. 78 para. 38

French: Zuppi, in: Sebastien Bettschart ed., Les ventes internationales (CDICAC 1998) Vol. 36, 23 [33-34]

German: Piltz, Int. Kaufrecht (1993) 70 No. 182 = Neue Juristische Wochenschrift 1994, 1101 [1105 n.79]

Spanish: Piltz, La Ley (5 September 1994) 1-4

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

excerpt of

Juzgado Nacional de Primera Instancia en lo Commercial No. 10

(Aguila Refractarios S.A. s/Conc. Preventivo) [23 October 1991]

Translation by Anoosha Boralessa [*]

[...]

4. Credits no. 4 (fs 1156), no. 51 (fs 1265), and no. 53 (fs 1269) require the verification of the interest accrued from the maturity of invoices and the presentation. The interest rate had not been expressly agreed by the parties. This is a case in which all of the purchases of goods acquired by the bankrupt are governed by international trade usages under the substantive rules of the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods [CISG], implemented in Argentina by Law 22.765 and which entered into force in the United States of America on 1 January 1988.

The issue involves Article 9(2) of the CISG recognizing that foreign case law has from ancient times followed intentional trade usages and customs for which the Court follows the same criteria with respect to credits no. 51 and 53 which correspond to creditors domiciled in Brazil, a country that is not a party to the Convention.

-   The payment of interest on a debt in dollars at an internationally recognized and used rate, such as the prime rate, is an accepted usage in international trade, even if it is not found to have been expressly agreed by the parties.
- For this reason, the reduction that the Trustee effected, by establishing the interest at an annual rate of 6% does not seem reasonable. Consequently, the Court accepts the interest at the rate requested by the creditors.

Credit no. 4 is for the sum of US $532 in concept of interest, but to admit of US $523 by 192 days at the rate of 10% per annum to which it corresponds. For this reason, the credit is declared admissible for a total of US $10,459. Credit no. 51 is declared admissible for the sum of US $26,360.69; for the reasons set out above, the interest has been correctly fixed at the rate of 10% per annum. Credit no. 53 is declared admissible for the sum of US $26,129.47 [...] .

5. For the reasons set out in paragraph 4, credit no. 60 (fs. 1283), which corresponds to an international sales agreement from a creditor established in the United States of America to the Trustee, the Court recommends verification of the interest rate at the prime rate plus a spread of 2% - to meet the same arrangement - it is declared admissible for the sum of US $187.95. The interest applied for in an amount of US $4,719.60 must be reduced to US $4,654.95 as there are errors in that calculation.

[...]


FOOTNOTE

* Anoosha Boralessa [insert bio details]

All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated August 5, 2005
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