Greece 2008 Decision 43945/2007 of the Single-Member Court of First Instance of Thessalonika
(Clothes case) [editorial analysis available]
[Cite as: http://cisgw3.law.pace.edu/cases/080002gr.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 43945/2007
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Greece (plaintiff)
BUYER'S COUNTRY: Italy (defendant)
GOODS INVOLVED: Clothes
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:
4B [Scope of the Convention (isues excluded): set-off, rate of interest]; 7C231 [Interpretation of Convention (gap-filling by domestic law): recourse to domestic law selected by Private International Law]; 78B [Rate of interest]
4B [Scope of the Convention (isues excluded): set-off, rate of interest];
7C231 [Interpretation of Convention (gap-filling by domestic law): recourse to domestic law selected by Private International Law];
78B [Rate of interest]
EDITOR: Dionysios P. Flambouras [*]
A Greek company (Seller) sold to an Italian company (Buyer) clothes for 41,874.70 Euro. The Buyer only paid the amount of €1,104.10. The Buyer raised an objection that it was entitled to a reduction of price since a few pieces of clothing had not been delivered (approx. €84.55 value), a few pieces of clothing had not been pre-ironed (approx. €559.46 value) and some pieces of clothing (approx. €3,849.65 value) were destroyed. In addition, the Buyer raised an objection and applied to the court to allow the [Buyer] to set-off against the purchase price its own claims for an amount equal to €11,733.88 that the Buyer paid on account of expenses for the purpose of remedying defects of clothes the Buyer had purchased from the Seller. The court found the Buyer's objections legal but rejected them as a matter of substance and ordered the Buyer to pay t€40,770.60 balance of the purchase price that was due.
2.1 Application of the CISG
The court applied the CISG by virtue of its art. 1(1)(a) since the Seller and the Buyer had their places of business, upon conclusion of the contract, in different Contracting States.
2.2 Matters related to international jurisdiction
The court held that, if the place where the seller is obliged to deliver the goods is in Greece, an action concerning a dispute under a contract governed by the CISG may be filed before the competent Greek courts. In particular, the court applied art. 5 § 1 items (a) and (b) of Regulation (EC) 44/2001 of the European Council dated 22 December 2000 on International Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Cases. Pursuant to the provisions of this Regulation and with Greece being the forum, as to disputes arising from a contract, a person residing [or an entity having its registered seat] in an EU member-state may be sued in another EU member-state before the court of the place where the obligation in question was or must be performed; in particular, in connection with a sale of goods, the place of performance of the obligation in question is the place where the delivery of goods was performed or should have been performed. Therefore, if the place where the seller is obliged to deliver the goods is in Greece, an action concerning a dispute under a contract governed by the CISG, may be filed before the competent Greek courts.
2.3 Buyer's objection: reduction of price -- Buyer's set-off
The court found that the Buyer's objection (see above paragraph 1) was legal and was based on CISG articles 45(1)(a), 50 and 51. The court further applied CISG art. 7(2) and found that the condition for the valid exercise of a set-off is an external gap of the CISG; accordingly, pursuant to the methodology set out in CISG art. 7(2), the conditions for the valid exercise of set-off are governed by the domestic rules of the law that is applicable in the contract of sale pursuant to the conflict rules of the forum. The court found that the contract of sale was governed by Greek law; accordingly, the legal conditions for the exercise of set-off (the Buyer's set-off, see above paragraph 1) were included in articles 440 and 441 of the Greek Civil Code. The court found the Buyer's objection and the Buyer's set-off legal. However, it rejected both as a matter of substance.
2.4 Rate of interest
The court applied CISG art. 7(2) and found that the rate of interest constitutes an external gap of the CISG; accordingly, pursuant to the methodology set out in CISG art. 7(2), the rate of interest is a matter governed by the domestic rules of the law that are applicable to the contract of sale pursuant to the conflict rules of the forum.
2.5 Other legal matters: time of payment of purchase price, time of accrual of interest
Referring to various provisions of the CISG, the court summarized the law as follows:
Pursuant to CISG art. 58(1) in the absence of an agreement to the contrary:
(a) the time when the purchase price is to be paid coincides with the time when the goods or the documents controlling disposition of the goods are placed at the buyer's disposal; and
(b) as results from the joint application of CISG arts. 59, 78 and 79, the period when interest accrues is determined with reference to such time [when the goods or the documents controlling disposition of the goods are placed at the buyer's disposal] without a notice being necessary to be served upon the promissor of the monetary obligation and regardless of any damage sustained by the promissee of the monetary obligation.
The time that the goods are deemed to have been placed at the buyer's disposal is the time of the passing of risk as set out in CISG articles 67-69; after this time the buyer cannot be discharged from its obligation to pay the purchase price. This time results from CISG articles 31, 67 and 69 and in the event of doubt coincides with:
(a) the time that the buyer takes delivery or fails to take delivery of the goods; or
(b) if the sale involves carriage of goods, the time that the goods are delivered to the first carrier.
2.6 Other citations
Excerpt from commentary by Dionysios P. Flambouras "Case Law of Greek Courts for the Vienna Convention (1980) for International Sale of Goods" (publication forthcoming in the Nordic Journal of Commercial law).
* Adjunct Lecturer (PD 407) in Civil Law, University of Athens (Dep. of Economics); Advocate of the Athens Bar, Solicitor in England & Wales; Member of M. & P. Bernitsas Law Offices. LL.M. (Brist.), M. Stud. (Oxon), Dr. Jur. in Civil Law (Athens).Go to Case Table of Contents
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Greek): Click here for Greek text; see also Chronicles of Private Law (2008) 52
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents