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CISG CASE PRESENTATION

Spain 17 February 1998 Supreme Court [3587/1996] (Epis-Centre v. La Palentina)
[Cite as: http://cisgw3.law.pace.edu/cases/980217s5.html]

Primary source(s) of information for case presentation: Michael R. Will; CISG-Spain & Latin America website

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Case identification

DATE OF DECISIONS: 19980217 (17 February 1998)

JURISDICTION: Spain

TRIBUNAL: Tribunal Supremo [Supreme Court]

JUDGE(S): Gullón Ballesteros (President)

CASE NUMBER/DOCKET NUMBER: 3587/1996

CASE NAME: Sociedad Cooperativa Epis-Centre v. La Palentina, S.A.

CASE HISTORY: 1st instance ICC arbitral award 6 April 1995 [exequator granted]

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Spain (defendant)

GOODS INVOLVED: Unavailable


Case abstract

SPAIN: Tribunal Supremo 17 February 1998 [3587/1996]

The plaintiff sought to have the Spanish Tribunal declare the recognition and enforcement of the decision of the Arbitral Tribunal (Paris, International Chamber of Commerce). The court decided favorably because of the evidence presented: a confirmation of sale from the mediating society including an arbitration clause and a telefax sent by the defendant in response to another telefax which included a copy of the aforementioned confirmation; in this telefax the defendant stated that it agreed with all of the clauses (and wished to add some others). One of the defendant's arguments was that a contract was not validly concluded between the parties. The court applied the CISG to state that the contract existed and was concluded by performing acts, according to Arts. 18(1) and 18(3) CISG.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 9 ; 18(1) and 18(3) ; 19

Classification of issues using UNCITRAL classification code numbers:

18A [Acceptance (time and manner): criteria for acceptance];

19B [Acceptance with material modifications]

Descriptors: Acceptance of offer ; Battle of the forms

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Editorial remarks

EDITOR: Patricia Rincón Martín

The court applied the CISG in order to reject the argument presented by the seller, the defendant, which alleged the non-existence of a contract. The Tribunal held that whether the telefax sent by the defendant was to be considered as an acceptance because it did not substantially altered the offer (Arts. 19(2) and 19(3) CISG), or whether it was to be considered as a counter-offer (Art. 19(1)), a contract was validly concluded since even in the second situation, the contract "se perfeccionó por actos concluyentes o típicos de ejecución realizados por la mercantil francesa (Art. 18.1 y 18.3). . . ."

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Citations to other abstracts, texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=897&step=Abstract>

Spanish: CISG-Spain & Latin America website "http://www.uc3m.es/cisg/respan9.htm"

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain & Latin America website "http://www.uc3m.es/cisg/sespan9.htm" Base de Datos [Database] Aranzadi Jurisprudencia; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=897&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated November 6, 2003
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