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CISG CASE PRESENTATION

Spain 3 November 1997 Appellate Court Barcelona (Rolled steel case)
[Cite as: http://cisgw3.law.pace.edu/cases/971103s4.html]

Primary source(s) of information for case presentation: UNCITRAL abstract; CISG-Spain and Latin America database

Case Table of Contents


Case identification

DATE OF DECISIONS: 19971103 (3 November 1997)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial [Appellate Court] de Barcelona, sección 16ª

JUDGE(S): Jordi Segui

CASE NUMBER/DOCKET NUMBER: 729/96-B

CASE NAME: T, SA v. E

CASE HISTORY: 1st instance Juzgado de Primera Instancia de Sant Felin de Llobregat (8/95) 12 January 1996 [partly affirmed]

SELLER'S COUNTRY: Germany [plaintiff]

BUYER'S COUNTRY: Spain [defendant]

GOODS INVOLVED: Rolled steel


Case abstract

SPAIN: Audiencia Provincial de Barcelona, sección 16, 3 November 1997

Case law on UNCITRAL text (CLOUT) abstract no. 246

Reproduced with permission from UNCITRAL

A Spanish buyer ordered from a German seller a set of parts for use in the buyer’s production process, it being agreed that the goods would be delivered by instalments. The seller consistently failed to meet the delivery deadlines so that three of the instalments were delivered after the agreed dates, with delays of between four and eight weeks and inevitable disruption of the buyer’s production process. In view of the situation, the buyer declared the contract avoided in respect of the outstanding future instalments within a period of 48 hours after delivery of the third overdue instalment.

The Court held that the buyer’s tolerance of the late delivery of the three initial instalments was equivalent to the granting of an “additional period of time” to the seller, in accordance with article 47 CISG. However, the delay incurred and its effects on the buyer’s production process were deemed by the Court to amount to a “fundamental breach”, in conformity with articles 33 and 49. The Court ruled that, in accordance with articles 49(2) and 73, such fundamental breach entitled the buyer to avoid the contract and prevent the handing over of future outstanding instalments. The 48-hour period within which the buyer cancelled following delivery of the last late instalment received was deemed to be a “reasonable time” within which to declare the contract avoided.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 25 ; 33 ; 47 ; 49(2) ; 73

Classification of issues using UNCITRAL classification code numbers:

25B [Definition of fundamental breach: substantial deprivation of expectations, etc.]

33A [Time for delivery: on date fixed by or determinable by contract];

47A [Buyer's right to fix additional period for performance];

49A1 ; 49A21 [Grounds for avoidance: fundamental breach of contract; Seller does not deliver within additional period set under art. 47];

73B12 [Fundamental breach with respect to future installments]

Descriptors: Delivery ; Avoidance ; Fundamental breach ; Nachfrist ; Installment contracts

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Editorial remarks

Unavailable

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=313&step=Abstract>

Spanish: CISG-Spain and Latin America database at http://www.uc3m.es/cisg/respan3.htm

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America database at http://www.uc3m.es/cisg/sespan3.htm ; Revista Jurídica de Catalunya, Jurisprudencia (1998, II) 411-412; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=313&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.547, 549, 656, 721

French: Rosch, Receuil Dalloz (1999) 363

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Pace Law School Institute of International Commercial Law - Last updated September 17, 2004
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