Slovenia 13 October 1999 Higher Court [Appellate Court] in Ljubljana (Dryers case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/991013sv.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 1 Cpg 577/98
CASE HISTORY: Court of First Intance (VII Pg 392/92-29) 4 December 1997 (affirmed)
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Slovenia (defendant)
GOODS INVOLVED: Dryers
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:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Slovene): Unavailable
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
13 October 1999 [I Cpg 577/98]
Translation [*] by Sandra Kajtazovi [**]
OPERATIVE PART OF THE JUDGMENT
The [Buyer]'s appeal is overruled and the judgment of the Court of First Instance (hereinafter "CFI") is affirmed.
The [Buyer] is to reimburse the [Seller] 61,180.00 SIT of costs of the answer to the appeal within eight days.
REASONING OF THE HIGHER COURT
With its decision VII Pg 392/92-29 dated 4 December 1997, the CFI kept in force a part of an executive decision, namely point 1 for 36,129,100.00 ITL with interest and point 3 for 54,100.00 SIT with executive costs and interest.
The [Buyer] filed an appeal in due course. [Buyer] alleges incomplete finding of facts and a serious procedural breach and requests the Higher Court to alter the judgment of the CFI and to overrule the [Seller]'s claim and, subordinately, to annul the decision of the CFI and return the matter to the CFI for a new proceeding. The [Buyer] alleges that the court did not verify its claims of an arrangement for the supply of dryers with Company A. It alleges that that fact could have been determined with the questioning of persons B and C, as well as with the agreement made by person B in regard to the payment conditions for the [Buyer]'s claims under warranty. It is also clear from the pictures that the products came from Company A. Company A operated independently since 1 May 1990, which is clear from its offer to Company D enclosed with the appeal (enclosures B72 and B73). The [appealed] judgment was handed down by one justice and the proceedings conducted by another. The [Buyer] declared costs of the appeal.
The appeal documents have been served to the [Seller]. The [Seller] answered and requested the Higher Court to overrule the [Buyer]'s appeal as unfounded. The [Seller] declared costs of the answer to the appeal.
The [Buyer]'s appeal is unfounded.
The Higher Court concludes that the alleged infringement of essential procedural provision from Article 354, paragraph 2, point 1 of the Slovenian Civil Procedure Act (hereinafter "ZPP") is unfounded. It is clear from the record of hearing dated 4 December 1997 that the hearing and the procedure of taking of evidence was conducted by the same justice and the same justice also handed down the contested judgment. With this finding of facts, the CFI did not commit a violation of procedure.
Allegations made by the [Buyer] that the CFI did not verify its claims as to the [Buyer]'s arrangement with Company A for the supply of dryers are without ground. CFI has correctly concluded that the [Seller] had a lease contract, by which it took over Company A together with all its property, trademark, company name, symbol and everything connected to or deriving from the company, as is evident from the enclosed lease contract dated 2 May 1990 (enclosure A7). Thus, the [Seller] also leased Company A's business activity. The photocopied pictures of dryers from the last shipment the [Buyer] produced as evidence (enclosures B1 and B2) to corroborate its allegations of a business relationship with company A and not with the [Seller] are in view of the lease contract insufficient to diminish the convincing conclusion of the CFI that the [Buyer] had a business relationship regarding the supply of dryers with the [Seller]. With the lease contract, the [Seller] acquired the right of use of Company A's name and the right to label its products with that company's trade mark.
In its Preparatory Application dated 24 October 1996, the [Buyer] recognizes it received dryers on 23 November 1990 and 21 December 1990. The chronological course of events shows that the [Buyer] received the dryers a few months after the [Seller] leased Company A. The [Buyer] failed to prove it contracted with Company A. The [Buyer] proposed questioning of persons B and C and submitted documents (B72, B73), which supposedly showed that Company A conducted business independently after 1 May 1990, however, according to Article 496a, paragraph 1 of the ZPP, the court may not evaluate proposed evidence, as the [Buyer] failed to elaborate or show [in its appeal] why it could not without its own fault state and submit those facts and evidence by the end of trial at the first instance.
The [Buyer] also failed to prove the existence of the alleged agreement with Company A that it relied upon before the CFI, according to which Company A would recognize the [Buyer]'s costs of repair of dryers and would set off that amount with the [Buyer]'s debt from the unpaid invoices. Moreover, the [Buyer] recognized [Seller]'s statements that the costs of repair were included in the disputed invoices by the [Buyer] itself (Preparatory Application dated 24 October 1996, sheet 30, point 3).
Both, [Seller] and [Buyer], come from countries that have ratified the UN Convention on Contracts for the International Sale of Goods (hereinafter "CISG"); therefore, the CISG should be used to determine the obligations arising out of the sales contract between the parties. According to Article 39 of the CISG, a buyer loses the right to rely on a lack of conformity of the goods (compare with Article 35(2) of the CISG) if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it, but at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. The [Buyer] claimed that it notified the [Seller] of the lack of conformity of dryers within the period of guarantee, however, the [Buyer] failed to prove it gave such notice and that the alleged notice was made in due time. The [Buyer] also failed to indicate the contractual period of guarantee. For the [Buyer] to succeed with its appeal, it would have to state all relevant facts and present proof to contest claims and evidence presented by the [Seller] as provided for by Articles 219 and 299 of the ZPP.
Neither the list of customers presented that had their dryer repaired (B4 and B5) nor the submitted monetary orders (B9-B70) prove the legally relevant fact of reclamation [to the Seller] or a settlement of the [Buyer]'s claimed costs for the repair of dryers.
According to the available arguments and evidence material, the CFI sufficiently established the facts relevant for deciding on the claim and correctly ruled in the case at hand. The CFI did not breach Article 354, paragraph 2 of the ZPP, which the court checks ex officio (Article 365, paragraph 2 of the ZPP). Therefore the appeal has to be overruled and the judgment of the CFI affirmed (Article 368 of the ZPP).
The operative part on the costs of the appeal is based on Article 166, paragraph 1 with connection to Article 154, paragraph 1 and Article 155 of the ZPP. Since the [Buyer] did not succeed with its appeal, the [Buyer] must reimburse the [Seller] the necessary costs of the answer to the appeal -- that is counsel's fee for drafting the answer to the appeal according to the Bar Tariff 16/1 - 700 points. Taking into account the current value of the Bar Tariff, which is 87.40 SIT, the [Buyer] is to pay the [Seller] 61,180.00 SIT for the cost of litigation. The Higher Court did not concede the [Seller]'s claim of 100 points for a client conference, since this task was already included in the award for the answer to the appeal and the [Seller]'s claim for the drafting of the answer to the appeal, since the [Seller] failed to demonstrated that it paid for the drafting and that it therefore suffered expenses.
The Higher Court applied terms ZPPP/77 on the basis of Article 498, paragraph 1 of the ZPP (Official Gazette of RS, no. 29/99).
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee of Italy is referred to as [Seller] and Defendant-Appellant of Slovenia is referred to as [Buyer]. The former currency of Italy (lira) is indicated as [ITL]; the former currency of Slovenia (tolar) is indicated as [SIT].
** Sandra Kajtazovi, B.A. in LawGo to Case Table of Contents