Slovenia 4 May 1993 Higher Court [Appellate Court] in Koper [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/930504sv.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 1Cpg 90/93
CASE HISTORY: Court of First Instance (Ig 102/92) 22 January 1992 [affirmed]
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Slovenia (defendant)
GOODS INVOLVED: [-]
APPLICATION OF CISG: No. "It is true that [the CISG] was ratified by both Italy and ex Socialist Federal Republic of Yugoslavia, however, [at this time] Slovenia did not take over this Convention in its legal system with any succession act."
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Slovene): Unavailable
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
4 May 1993 [Cpg 90/93]
Translation [*] by Marko Ketler [**]
Where a sales contract was concluded between the Plaintiff [Seller] with its seat in the Republic of Italy and Defendant with its seat in Republic of Slovenia, whereby the offer was given by the [Seller], Italian law shall be applied.
OPERATIVE PART OF THE JUDGMENT
Defendant's appeal is overruled as unfounded. The judgment of the Court of First Instance is affirmed.
REASONING OF THE COURT
Court of First Instance (hereinafter "CFI") has ruled that first and third point of the decree for execution of CFI dated 22 January 1992 No. Ig 102/92, pursuant to which the Defendant is obliged to pay 87,155,720 Italian lira [ITL] with interest to the [Seller], shall stay valid.
The Defendant has filed an appeal on the basis of grounds recited in Article 353, paragraph 1 of the Slovenian Civil Procedure Act and requested that the Higher Court alter the judgment of the CFI to overrule the [Seller]'s claim and subordinately to annul the decision of the CFI and return the matter to the CFI for a new proceeding. Defendant states in appeal that the operative part of the judgment is indefinite and incomprehensible, since the judgment received by the Defendant does not contain a first and third point and therefore it is not clear what shall stay valid. Defendant alleges that the finding by the CFI that a sales contract was concluded between the parties is completely erroneous.
The Defendant alleges that:
It has actually acted as agent of the organization ... from ... in this matter and did not act towards the [Seller] as buyer. CFI has erroneously applied the national law instead of provisions of United Nations Convention on Contracts for the International Sale of Goods as of 11 April 1980 (hereinafter "the CISG"). Even for the question of limitation, which is not covered by CISG, CFI should not apply Italian national law. If the CFI was of the opinion that even in the case that the limitation period of three years shall apply according to the Obligations Act, the limitation did not occur, since it was interrupted by the Defendant's statement dated 19 January 1989. Defendant stresses that this statement by its content cannot be deemed an acknowledgment of the debt. Defendant has also objected to the amount of interest and the rate of default interest and thus the finding of CFI that Defendant did not object to this is erroneous.
The Higher Court rules that the Defendant's appeal is unfounded.
The CFI has correctly and fully ascertained the facts of the dispute and correctly applied the substantive law. It it did not commit either a breach of the provisions of civil procedure stated in the appeal or a breach that should be taken into account by the Higher Court under its official duty. Defendant's assertion that the operative part of the judgment is indefinite and incomprehensible is also unfounded.
It is evident that the decree for execution contains three points, whereby under the first point the debtor shall pay the receivable stated in the proposal in eight days after service and the third point determines that creditor's costs amount to 91,728.00 SIT. Since the proposal for enforcement was also served to the Defendant, the operative part of the judgment is formed in a comprehensible manner and the amount of default interest is evident from it. And the Higher Court rules that CFI has acted correctly when it applied Italian law for the legal relation between the parties and its legal judgment that this legal relation shall be interpreted as a sales contract, is also correct.
Regarding the reasoning behind these conclusions:
The Higher Court completely accepts the reasons stated by CFI in its substantiation. There is no basis in evidence for the conclusion, again presented by Defendant that the latter has acted as agent of the organization ... from ... and not as buyer towards the [Seller]. Such a conclusion is not possible out of simple reason, since this was a sales contract in border trade, whereby only the company with its seat in the area for which the bilateral agreement of Trieste is in force can appear as a party and Defendant is such company, whereas organization ... is not.
Defendant's assertion that CFI should have applied the CISG is also unfounded. It is true that this Convention was ratified by both Italy and ex Socialist Federal Republic of Yugoslavia, however, Slovenia did not take over this Convention in its legal system with any succession act. Even so, this question does not have any practical meaning, since in the present case a question of limitation is important and the CISG does not cover limitation periods. The CFI has correctly ruled that, pursuant to Article 20 of Act on the Conflict of Laws with Laws of Foreign Nations in Certain Cases, Italian law shall be applied. According to Article 25 and Article 1326 of the Codice civile, such reference regarding when and where the contract was concluded, is accepted by the Italian law. Namely, in the present case the offer for conclusion of the sales contract was given by [Seller] and latter has also accepted Defendant's consent that the contract shall be concluded, which means that the contract was concluded in the territory of the Republic of Italy. With the Italian law as the applicable substantive law, a provision of Article 2946 of the Codice civile sets the general limitation period of ten years (shorter period of one year according to Article 2955, point 5 of Codice civile shall be used for receivables of merchants against non-merchants).. As regards the question of default interest, the Italian law shall also be used, which was correctly ruled by CFI.
From all stated grounds, the Higher Court regards Defendant's appeal as unfounded and affirms the judgment of the Court of First Instance.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee of Italy is referred to as [Seller].
** Marko Ketler, Attorney-at-Law at Law Firm Rojs, Peljhan Pretesnik & Partners <http://www.rppp.si>Go to Case Table of Contents