Switzerland 29 June 1994 Appellate Court Valais (Bonaldo v. A.F.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/940629s1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: C 118/94
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Switzerland (defendant)
GOODS INVOLVED: Furniture
SWITZERLAND: Tribunal cantonal du Valais 29 June 1994 Case law on UNCITRAL texts (CLOUT) abstract no. 199 Reproduced with permission from UNCITRAL The plaintiff, an Italian seller of furniture, sued the defendant, a Swiss buyer, for the purchase price. The issue to be determined by the court was whether it had jurisdiction and whether the CISG was applicable. The court affirmed the applicability of the CISG finding that the parties had their place of business in different Contracting States (article 1(1)(a) CISG). The court further held that the CISG was applicable autonomously and not as the domestic law of the State designated by the forum's choice-of-law rules. Consequently, the court determined that it had jurisdiction.
Abstract of ruling on rate of interest, Volker Behr
Reproduced with permission of 17 Journal of Law and Commerce (1998) 263 at 281-282
In this Swiss-Italian sale of furniture at a price of 10,535.20 Swiss Francs . . . [t]he italian
seller claimed the price plus 11% interest. The court stated:
"Article 78 CISG does not fix the rate of interest. Thus this rate is fixed by the law applicable by virtue of private
international law.
According to Article 117 IPRG (Swiss private international law), if there is no choice of law, a contract is governed by
the law with which it is most closely connected. There is a presumption that the country with the most close connection is
the country in which the party obliged to the characteristic performance has her residence. In contracts for the sale of
goods the performance of the seller is the characteristic performance.
According to these rules of private international law, Italian law is applicable as to the rate of interest. Characteristic
performance is the performance of delivering furniture, performance of the plaintiff having her place of business in Italy.
According to Article 1284 of the Italian Codice Civile the rate of legal interest is 10%. Interest over and above this rate
must be contracted to in writing. A contract of this kind is not presented; thus the rate of interest is 10%."
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Classification of issues using UNCITRAL classification code
numbers: 6B [Agreements to apply Convention: In a contract between parties from different Contracting, where contract silent on governing law, the CISG applies absent an Article 6 exclusion] Descriptors:
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=177&step=Abstract>
French: Revue valaisanne de jurisprudence / Zeitschrift für
Walliser Rechtsprechung (Sion) 1994, 125
Italian: [1997] Diritto del Commercio Internazionale 726 No. 135
CITATIONS TO TEXT OF DECISION
Original language (German): 28 Revue valaisanne de jurisprudence
/ Zeitschrift für Walliser Rechtsprechung (Sion) 1994, 125-127; Unilex
database <http://www.unilex.info/case.cfm?pid=1&do=case&id=177&step=FullText> Translation (English): Text 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 281-282)
German: Schlechtriem, Internationales UN-Kaufrecht (1996) 8 n.4
Case abstracts
Classification of issues present
Editorial remarks
Citations to other abstracts, case texts and commentaries
CITATIONS TO OTHER ABSTRACTS OF DECISION
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
Bonaldo S.p.A. v. A.F.
29 June 1994
[...]
FACTS
A. On 14 February 1994, [Seller] of Italy brought an action against [Buyer] of Brig-Gils, Switzerland, before the Lower District Court of Brig. It requested payment of Swiss francs [Sfr.] 10,535.20 plus interest. [Seller] asserted that [Buyer] had purchased furniture on several occasions. Although the invoices corresponding to these sales were undisputed and a reminder had been issued, they had not been paid.
B. [Buyer] failed to submit its procedural response to the claim within the required period of time. Therefore, the Lower District Court Judge forwarded the file to the District Court Valais in order to assess the [Buyer]'s default and, consequently, to issue a default judgment if necessary.
RULING OF THE COURT
1. [Jurisdiction of the District Court Valais]
a) Apart from exceptions which are not applicable to this case, the District Court takes jurisdiction over legal disputes which can be appealed to the Federal Court (Art. 5(1) ZPO [*]). This includes civil estate and property disputes, if their value amount to at least Sfr. 8,000 (Art. 46 OG [*]) and it is necessary to apply federal law -- which also embodies the conflicts of laws rules of Swiss private international law (BGE [*] 110 II 78 E. 2 with annotations) --, or international treaties signed by the Swiss Federation (Art. 43(1) OG [*]; Poudret, Commentaire de la loi fédérale d'organisation judiciaire, N. 1.2.3. zu Art. 43 OG [*]). In the present case, [Seller] claims a total sum of Sfr. 10,535.20 (plus interest), which exceeds the above limit. The [Seller] has its place of business in Italy whereas the [Buyer] is located in Switzerland. Due to this international legal relation, the proper law applicable to the merits of the case must be determined. Appealing to the Federal Court will not be possible whenever a Swiss court applies a foreign body of law, except in the context of non-property disputes (Art. 43(1), Art. 43a(2) OG [*]; Poudret, N. 1.6.5. zu Art. 43 OG [*]).
b) [Seller] requests payment of the purchase price by [Buyer] with respect to furniture delivered in Switzerland from December 1992 on. According to the record, the furniture was not intended for personal use. It is undisputed that the parties entered into one, maybe several, contract(s) for the sale of movable goods. For the present proceedings, it can be assumed that these contracts were effectively concluded. There are no indications as to whether the parties designated a certain forum or a certain body of law.
The United Nations Convention on Contracts for the International Sale of Goods ("Vienna Sales Convention", CISG) of 11 April 1980 applies -- unless otherwise stipulated (Art. 6) -- to contracts of sale of goods between parties whose places of business are in different States when these States have adopted the Convention (Art. 1(1)(a)). These prerequisites are met in this case: First, both parties have their places of business in different States; second, the Convention became effective for Italy on 1 January 1988 and for Switzerland on 3 March 1991. In both countries, a unified body of substantive law applies to the international sale of goods. Prerequisites concerning the subject matter of the CISG (cf. Art. 2) are met as well. Failing any agreement to preclude the CISG, the present contractual relationship is thus governed by the Convention. However, contrary to the view held in ZWR [*] 1993 p. 280 E. 2b, this Convention must be applied autonomously (Neumayer/Ming, Convention de Vienne sur les contrats de vente internationale de marchandises, Commentaire, p. 42), not as domestic law of the country designated by conflicts of laws rules. Therefore, bringing an appeal before the Federal Court in a dispute governed by the CISG is admissible, unhindered by domestic Swiss rules. This further establishes the District Court's jurisdiction in the first instance over the present dispute. As a consequence, the Court needs to find whether the prerequisites for rendering a default judgment are met (ZWR [*] 1984 p. 101 E. 3).
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of Switzerland is referred to as [Buyer]. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sfr.].
Translator's note on other abbreviations: BGE = Bundesgerichtsentscheidung [Collected decision of the Swiss Federal Supreme Court]; OG = Bundesgesetz über die Organisation der Bundesrechtspflege [Swiss Federal Code on Court Organization]
; ZPO = Zivilprozessordnung des Kantons Wallis [Code of Civil Procedure of the Canton of Valais]; ZWR = Zeitschrift für Walliser Rechtsprechung [Valaisian journal on legal practice].** Jan Henning Berg is a law student at the University of Osnabrück, Germany and participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis Moot and 4th Willem C. Vis (East) Moot.
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