Greece 2009 Decision 2282/2009 of the Multi-Member Court of First Instance of Athens [editorial analysis available]
[Cite as: http://cisgw3.law.pace.edu/cases/092282gr.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 2282/2009
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy
BUYER'S COUNTRY: Greece
GOODS INVOLVED: Movable goods (no further specification)
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:
EDITOR: Dionysios P. Flambouras [*]
The published part of the judgment does not include any facts other than a sale of movable goods in which the Seller is Italian and the Buyer is from Greece.
2.1 Application of the CISG
CISG was applied by virtue of art. 1(1)(b).
2.2 Jurisdictional matters and relation with CISG
Greece was held to be an appropriate forum for the resolution of disputes arising from the contract. The court applied art. 5 § 1 item (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 and Greece. In accordance with these provisions of the Regulation, 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. However, if the place where the seller is obliged to deliver the goods is not in Greece and the defendant is not residing [or, if an entity, does not have its registered seat] in Greece, then Greek courts do not have international jurisdiction to hear an action concerning a dispute under the contract governed by the CISG.
2.3 Applicable law
The Rome Convention of 1980 for the applicable law on contractual obligations, ratified in Greece by law 1792/1988 (Gov. Gazette 142/1988) sets uniform rules of private international law, which supersede the domestic private international law rules. Since the contracting parties had not selected an applicable law to govern their sales contract (art. 3 of Law 1792/1988), it was adjudicated that the sales contract was governed by the law which is most closely connected with the contract (art. 4 § 1 of Law 1792/1988). In order for the court to find the law which is most closely connected to the contract, it applied the presumption of the characteristic obligation provided by art. 4 § 2 of Law 1792/1988. The court further accepted that in a sales contract the characteristic obligation must be fulfilled by the seller (i.e., the delivery of the goods against payment of the price) and therefore, in the absence of an agreement to the contrary, the law of the seller's country is the applicable law.
2.4 CISG matters [The following is an excerpt from the text of the judgment translated into English by the Editor.]
"Following the above, in case of a contract for the sale of goods which was concluded between an Italian company (seller) and a Greek company (buyer), if the applicable law was not contractually defined by the parties, then the law which is most closely connected to the contract. In this case, that is deemed to be the Italian law, since it is the law of the country in which the party, who is obliged to perform the characteristic obligation, i.e., the selling company, has its main place of business (Multi-Member First Instance Court of Thessalonica 22513/2003, NOMOS Legal Database). As regards a contract for the sale of goods concluded after 1 January 1998, the Italian law is the United Nations Convention for the International Sales of Goods entered into effect in Italy (the Vienna Convention or CISG). This Convention has been ratified in Greece by Law 2532/1997 and has come into effect in Greece on 1 February 1999. In accordance with Article 1(1)(b) of the CISG, it applies to contracts for the sale of goods concluded between parties who have their place of business in different States, when the rules of the private international law suggest as applicable, the law of the Contracting State.
"Based on the above, the applicable law is determined by the place were the obligation is performed which is principally defined by the will of the parties (lex voluntatis) and in absence thereof, from the provisions of CISG Arts. 31 and 57 which apply in the form of domestic law in the absence of any agreement between the parties to the contrary (CISG Art. 6). Article 31(a), (b) and (c) of the Convention, which regulates in substance the conclusion of the sale, the rights and obligations of the parties and the consequences of any breach thereof (Article 4), it is provided that, if there is no agreement for the performance of the obligation in another place, the handing over of goods is effected in the place where these are delivered to the first carrier, while if no carriage exists, the place where the obligation of the seller is performed coincides with the place of manufacturing or production of goods and, in case of doubt, the place where the goods were handed over is the place where the seller has its place of business.
"Pursuant to the provisions of Article 35(1) of the Convention, the main contractual obligation of the seller is to hand over to the buyer goods that conform to the requirements of the contract, i.e., which are of the quantity, quality, description or package described in the agreed or regular purpose of their use. In parallel, in par. (2) of Article 35, the objective and subjective criteria are listed, which, within the context of the Civil Code, are used in order to specify the meaning of actual defects, while the agreement upon qualities, whose lack would be deemed as lack of compliance of the goods to the requirements of the contract. In addition, as concluded by Articles 45, 46, 50 and 49 of the Vienna Convention, if the seller does not perform any of its obligations under the sales contract, the buyer may demand from the seller to perform its obligations, to remedy the non-conformity to the contract with repair, unless this is not expedient under the circumstances, to request the reduction of the price, regardless if the price has been paid or not, to declare the contract avoided under conditions, as well as to claim damages regardless of whether the buyer has exercised any other remedy granted to him. As regards the extent and the content of the claim for damages, Article 74 provides that the damages due consists of an amount equal to the damage that the other party sustained as result of the contractual breach."
3. OTHER CITATIONS
Case discussed in 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). For comments: <firstname.lastname@example.org>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): Companies and Enterprises Law Review (Dikeo Epihiriseon ke Eterion) (2009) 831
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents