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CISG CASE PRESENTATION

Switzerland 6 December 1993 Appellate Court Vaud (Fruit and vegetables case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/931206s1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19931206 (6 December 1993)

JURISDICTION: Switzerland

TRIBUNAL: Tribunal Cantonal Vaud [Canton Appellate Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Fruit and vegetables


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 53 ; 78 [Also cited: Articles 58(1) ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

53A [Buyer's obligations: obligation to pay price of goods];

78A ; 78B [Interest on delay in receiving price: accrual of; Rate of interest]

Descriptors: Price ; 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=173&step=Abstract>

Italian: Diritto del Commercio Internazionale (1997) 725-726 No. 134

CITATIONS TO TEXT OF DECISION

Original language (French): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=173&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Dutch: Van Houtte, [1998] Tijdschrift voor Belgisch handelsrecht/Revue de droit commercial belge (TBH) 344 [353 n.45]

English: Ferrari, International Legal Forum (4/1998) 138-255 [253 n.1079 (interest issues)]

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Tribunal Cantonal [Appellate Court] Vaud 6 December 1993

Translation by Annabel Teiling [*]

I.   Following the terms of article 57 line 2 (CPC), when the defendant [the buyer, in this case] does not proceed on the substance and he defaults, the Judge controls or otherwise automatically declines his competence in the causes governed by article 59 of the Federal Constitution, as well as in international causes of a patrimonial nature,

The Lugano Convention of 16 September 1988, concerning judicial competence and the execution of decisions in civil and commercial matters (RS 0.275.11), came into effect for Switzerland on 1 January 1992, and applies to the case at hand on the intertemporal standpoint (art. 54 of the Convention), devotes its article 2 to the principle of the competence of the State's jurisdiction over the defendant's domicile. The headquarters of a moral person is assimilated to the person's domicile (article 53). Article 2 raises the rule in the event of conflicting jurisdictions; the forum must be determined through the law of the State declared competent (Poudret, Rules on Competence of the Lugano Convention confront those of the Federal law, particularly Article 59 of the Constitution of 16 September 1988, CEDIDAC publication # 21, p. 59 and 64-65).

In the case at hand, it is not necessary to research, at the above-mentioned doctrine (Poudret, ibid. p. 60), if the forum must be fixed in accordance with the Federal Law on Private International Law of 18 December 1987 (R.S. 291; then: LDIP), or in accordance with the internal Swiss law. Indeed, article 51 (CPC) provides that all actions must be brought in front of the judge of the defendant's domicile, unless that cannot be determined; similarly, according to article 112 (LDIP), the Swiss tribunals of the domicile of the defendant are competent to know the actions that may follow from a contract. The defendant [buyer] having her main residence at B. [in Switzerland], the Judge may not decline his competence because of the place; materially, he is competent.

II.  a) Article 118 line 1 (LDIP) explains that the sale of goods is governed by the Hague Convention on the Law Applicable to International Sales of Goods (RS 0.221.211.4). Article 3, line 1 of this Convention submits to the sale, if If the parties have not agreed on the applicable law, article 3, line 1 of this Convention subjects the sale to the internal law of the State where the seller has his domicile at the time when he receives the order. However, the internal law of the State where the buyer has her domicile is applicable, if it is in that country that the order was received (art. 3 line 2 of the Convention).

In this case, neither an election of law nor the taking of an order in Switzerland is alleged or established. French law is thus applicable subject to the following.

       b) The UN Convention on Contracts for the International Sale of Goods (RS 0.221.211.1; hereafter: the Vienna Convention) concluded in Vienna on 11 April 1980, came into effect on 1 January 1988 for France and on 1 March 1991, for Switzerland. In reference to the terms of its article 1, the Convention is applicable to contracts for the sale of goods, between parties having their places of business in different States: (a) when they are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State (art. 1(1) CISG).

The conditions required by this clause having been met, the case at hand must be settled according to the rules of the Vienna Convention.

III. a) The [seller] has fulfilled his contractual obligations by delivering the first orders of the [buyer], who did not contest. It is not alleged that the litigious bills are justified, nor that the applied prices are in conformity with the parties' agreements and that the quantities correspond to the deliveries. However, it may be admitted that this allegation is implicitly contained in the complaint: the one who seeks to obtain obtained payment of a bill must inevitably invoke its validity; otherwise it would be incoherent. An express allegation is not necessary in these conditions. It is the defendant's responsibility to proceed and to contest the calculation basis of the bills, which [buyer] has not done in this case -either during the proceedings or beforehand. From this time and in view of the following, it must be considered that the [buyer] is held to have accepted the sales price, that became payable as soon as the deliveries were being received (arts. 53, 58, 1(1) and 59 of the Vienna Convention). It follows that [buyer] owes to the [seller] the total amount of the bills that were not paid, thus, a sum of 309,897 Sf [Swiss francs].

       b) The [seller] demands that to this sum be added an interest fee of 9% as of 1 July 1992.

The Vienna Convention rules on the principle of interest on arrears in cases where the sales price has not been paid, but it does not rule on the beginning time, nor on the rate of interest, which must be determined according to the applicable national law (Stoffel, The Applicable Law for Contracts of International Sales of Goods, in Contracts for the International Sale of Goods, CEDIDAC publication # 20, p. 39).

In French Law, the buyer owes interest on the price if and as soon as the amount was due (arts. 1153 and 1652 CCF). The payment may be intervened by the sending of a missive letter (Weil, Civil Law - Obligations, Summary Dalloz, 1971, p. 445; Index of the Civil Law, Dalloz, and d., t. V, Interest on Capital, # 26-27). The [buyer], intervened by certified mail of 9 November from the [seller]'s advisor, was given notice on 16 November 1992, at the date of expiration of the time period imparted in the letter. It is the next morning, thus 17 November 1992, that the interest on arrears must begin. Notwithstanding, it is appropriate to observe that the application of Swiss Law would have led to the same solution (see arts. 102, line 1 and 104 line 1 CO).

There remains the question of rate of interest. In this case, the [seller] invokes, but fails to prove the rate of interest on arrears applicable in France. This rate, which comes from the applicable law, does not benefit indeed from the exact presumption of article 306 CPC. In his demand, the [seller] offered to establish this by evidence added subsequently; and raises this issue to today. [Seller] did not deliver the evidence in question, nor established the said rate in another manner. Article 6 line 3 CPP permits the Judge to rule in accordance with the Swiss law if the foreign law cannot be established.

In patrimonial causes of action, the judge can put the burden of proof of the content of the foreign law on the party that seeks to take advantage of it, and if this proof is not satisfied, can apply Swiss law as a supplement (art. 16 LDIP; 6 lines 2 and 3 CPC; Poudret/ Wurzburger/ Haldy, Civil Procedure from the Vaud Canton, # 3 art. 6). There is also the possibility of following the rules of Swiss law and allocating to the sales price an interest on arrears of 5% (art. 104, line 1 CO), the clauses which would eventually permit the fixing of a higher rate (arts. 104, line 2 and 3, 106 line 1 CO) not being applicable because of a lack of allegations on the subject matter.

IV. The civil judge seized of an action in a lack of recognition of a debt can, at the time that the judge is ruling on the main issue, pronounce at withdrawal, if the conditions are met (art. 36 line 2 CVLP; ATF 107 III 60, c. 3, p. 65, 1982 p. 81 ). This is the case in the problem at hand: the debt owed to the [seller] was payable at the opening of this case; thus, [seller]'s action was introduced in the pre-emptive time period of articles 58, line 2 and 166 line 2 LP. Consequently, the [buyer]'s opposition must be definitely removed until concurrence of the sum and interest allocated to the [seller].

V. Definitely, the [seller] obtains the adjudication of his reduced conclusions, with minor reserves on the date and time to begin and on the rate of the interest on arrears. He is thus entitled to full payment and costs (art. 92 1.1 CPC), that it is appropriate to rule at 3,758 Sf, thus:

a) 2,000 Sf for the participation of the honorary of [seller]'s counsel,
b) 100 Sf for the disbursement of the above mentioned;
c) 1,658 Sf in reimbursement of the judicial costs of the litigation.

For these reasons, the examining magistrates, ruling in camera and against the [buyer], rule:

I. The [buyer] must pay to the [seller] the amount of 309,897 Sf (three hundred and nine thousand eight hundred and ninety seven Swiss francs), with interest of 9% to begin as of 17 November 1992.

II. The opposition held by the [buyer] requesting the payment of #300318 of the counsels' office of (M.) is definitely denied until concurrence of the amount allocated in capital and interest under I. of this ruling.

III. The costs of the litigation, to be paid by the [seller], are to be ruled at 1,658 Sf (one thousand six hundred and fifty eight Swiss francs).

IV. The [buyer] defendant owes to the [seller] the sum of 3,758 Sf (three thousand seven hundred and fifty eight Swiss francs) in accordance with the costs.

V. All other different or more lenient conclusions are rejected.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this presentation, the Plaintiff of France is referred to as [seller]; the Defendant of Switzerland is referred to as [buyer]. Monetary amounts in Swiss Currency [Swiss francs] are indicated as [Sf].

Translator's notes on other abbreviations: CO = Code des Obligations

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Pace Law School Institute of International Commercial Law - Last updated June 25, 2003
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