CISG CASE PRESENTATION

SPAIN: Audiencia Provincial de Barcelona 7 June 1999

Case law on UNCITRAL texts (CLOUT) abstract no. 320 [(CLOUT) abstract no. 394 also addresses this case]

Reproduced with permission from UNCITRAL

The matter at issue was concerned with the determining of the jurisdiction of the Spanish courts and the declaring of Spanish law as the law applicable to a dispute which arose from a commercial sale of textiles in which a Spanish manufacture, the plaintiff, was the seller and a British importer, the defendant, was the buyer. It had been agreed that payment for the purchased goods would take place at the seller's domicile, which does not appear to have happened. Since Spain is a party to the CISG and the United Kingdom is not, it had to be concluded that, in the event that Spanish law was applicable, the CISG would be the instrument governing the sale.

The Court noted that the essential service provided under the disputed contract was the supply of the purchased textiles by the seller, whose administrative headquarters are located in the city of Barcelona.

The Court accordingly ruled that the law applicable was Spanish law and hence the CISG would apply, even though the United Kingdom is not a party to the CISG. That ruling was in accordance with article 1(1)(b) CISG, which states that the CISG applies to contracts of sale of goods between parties whose places of business are in different States when the rules of private international law lead to the application of the law of a Contracting State, which is what happened in the present case.

The Court further indicated that the jurisdiction of the Spanish courts was based on article 57(1)(a) CISG, which states that, if no other place is specified, the price has to be paid "at the seller's place of business". Consequently, that is the place of performance of the contract and the place that determines which courts have jurisdiction to hear the seller's claim and settle the dispute.

The seller sought to have the Spanish Tribunal declare that it had jurisdiction to rule on the merits of the case according to the Brussels Convention of 27 September 1968, which determines that the competent tribunal is that where the obligation claimed to have been breached is purported to have been performed. In this case, the place of performance of this obligation, the payment of the price, was in dispute. The Tribunal ruled that in the light of Spanish private international law, the applicable law to determine the place of payment was Spanish Law (lex fori).

The court further found that since Spain was a Contracting State to the CISG and the contract involved the international sale of goods, the CISG was applicable. In this case, despite the fact that the UK is not a Contracting State, according to Art 1(1)(b) the CISG is nevertheless applicable. Furthermore, the regulation of the place of the payment falls within Art. 57(1)(a) CISG, which states that in cases such as this the place of payment is the seller's place of business. The court therefore concluded that the Spanish Tribunal had jurisdiction.