Spain 13 March 2007 Appellate Court Valencia (Coconut case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070313s4.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Recurso No. 493/2006
CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 2 de Picassent 27 December 2005
SELLER'S COUNTRY: Spain (defendant)
BUYER'S COUNTRY: Possibly Libya (plaintiff)
GOODS INVOLVED: Grated coconuts
APPLICATION OF CISG: Yes [Article 1(1)(b)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
4B [Scope of Convention (issues excluded): statute of limitations]
4B [Scope of Convention (issues excluded): statute of limitations]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1254&step=Abstract>
Spanish: CISG-Spain and Latin America website <http://turan.uc3m.es/cisg/respan69.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1254&step=FullText>
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America website <http://turan.uc3m.es/cisg/sespan69.htm>; see also Fuente: Aranzadi Westlaw JUR 2007\273209
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
Translation [*] by Luiz Gustavo Meira Moser [**]
Edited by Guillermo Coronado Aguilar [***]
Having reviewed and considered the Judgment of Claims No. 493/2006, on appeal before the 8th Section of this Audiencia Provincial, heard by the Court of First Instance No. 2 of Picasset file No. 172/2004, brought by [Buyer] against [Seller].
1. The operative part of the decision reads as follows
"HOLDING: Denying the claim brought by [Buyer], represented by Mr. Sapena Davo and Cerdá Donat, against [Seller] represented by Mr. Lluesma Rodríguez and Alegre Gil, and releasing [Seller] from the claims brought by [Buyer], and awarding costs to [Buyer]."
2. Against this decision, the [Buyer] lodged an appeal to both effects; the records of the case were referred to this Audiencia, and provide for a hearing in open court on 6 February 2007.
3. The legal statute of limitations has been observed.
Plaintiff [Buyer] requested from the Defendant [Seller] the payment of € 6,009.63 as a result of the termination of a contract for the sale of grated coconuts.
[Buyer] acquired 12,500 kg of grated coconuts on 14 June 2002. The contract stated that the delivery of the goods would be in Libya, Tripoli harbor, in accordance with a Free on Board (FOB) clause. The [Buyer] paid in advance the amount of € 14,700. Nevertheless, at the time of the delivery of the goods in Libya, on 26 July 2002, the local authorities attested that the goods were unsuitable for human consumption, since the label on the goods had an expiration period of consumption of at the end of 2002. Thereupon, the [Buyer] immediately communicated this to the [Seller] who quickly informed that there was an error since the correct date of expiration was at the end of 2003. Moreover, [Seller] sent to the [Buyer] some test results carried out with the goods which illustrated the proper conditions of the goods.
On 27 September 2002, [Seller] sent a fax to the [Buyer] ascertaining that, if there was no other alternative, the goods should be resent to Spain, and then the [Buyer] should be held responsible for the transportation costs due to the FOB clause.
On 16 January 2003, the goods arrived in Valencia, Spain. [Seller] paid back the amount of € 12,752.70 anticipated by the [Buyer].
[Buyer] requested from the [Seller] return of the remaining unpaid amount as well as damages, totaling € 6,009.63, due to the termination of the contract.
[Seller] stated that the contract had been avoided by mutual consent of the parties. Moreover, it ascertained that the last communication of the [Buyer] occurred on 31 March 2003 and the request was filed on 16 March 2004. Consequently, the six month cut-off period to requesting relief from the [Seller] had already elapsed in accordance with Art. 1486 of the Spanish Civil Code as well as Art. 944 of the Spanish Commercial Code.
ON THE ABOVE
The Court of First Instance a quo dismissed [Buyer]'s claim.
[Buyer] appealed the decision, stating in particular the non-occurrence of the cut-off period and requesting relief from the [Seller] in accordance with the United Nations Convention on International Sale of Goods (CISG).
The Appellate Court, in analyzing Art. 1.5 of the Spanish Civil Code, held the CISG applicable, since the governing law was to be that of the country in which the contract had been concluded, i.e., Spain, a Contracting State (Art. 1(1) (b) CISG). Therefore, the Court stated that the contract at hand was covered by the CISG and that the parties had not excluded its application as set forth in Art. 6 CISG.
Concerning the merits of the case, the Court held that, in theory, the [Buyer] was entitled to claim damages in accordance with Arts. 74 et seq. CISG and that the request was not cut-off since the Spanish law on prescription, which should be applied in light of the CISG (see Art. 4 of the CISG), provides for a period of 15 years, as set forth in Art. 1964 of the Spanish Civil Code.
A different question is that, despite these arguments, the justification for an award of damages has been declared several times before by this Court. It is that:
The breach of a contract does not necessarily entitle a claimant to damages: a) a court cannot allocate damages if not sustained by proof; b) in this case, proof of the existence and the quantity of damages must be provided by the Claimant [Buyer]. The Appellate Court dismissed [Buyer]'s claim since it had failed to prove in an adequate form the alleged damages.
ON THIS GROUND
The Court dismissed [Buyer]'s claim.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff is referred to as [Buyer]; Defendant is referred to as [Seller]. Amounts in European currency (Euros) are indicated as [€].
** Luiz Gustavo Meira Moser is a member of the Brazilian Arbitration Committee, YIAG, Association Suisse d'Arbitrage (ASA), ICDR, International Law Association - Brazilian Committee and Queen Mary Case Translation Programme participant. Moser is the Brazilian Correspondent in the Global Sales Law Project.
*** Guillermo Coronado Aguilar was a participant in the 15th annual Willem C. Vis International Commercial Arbitration Moot representing Universidad Panamericana, campus Guadalajara. He is now correspondent of the Global Sales Law Project directed by Ingeborg Schwenzer and adaptor from English to Spanish of articles of the book "Commentary on the UN Convention on the International Sale of Goods", directed by Ingeborg Schwenzer and Edgardo Muñoz. He is Legal Advisor for the law firm Coronado Figueros y Associados, S.C.Go to Case Table of Contents