Switzerland 30 June 1998 Canton Appellate Court Valais / Wallis (Granite stones case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/980630s1.html]
DATE OF DECISIONS:
CASE NUMBER/DOCKET NUMBER: CI-98-9
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Switzerland (defendant)
GOODS INVOLVED: Granite stones
SWITZERLAND: Kantonsgericht Kanton Wallis (Zivilgerichtshof I) 30 June 1998
Case law on UNCITRAL texts (CLOUT) abstract no. 255
Reproduced with permission from UNCITRAL
An Italian seller, plaintiff, sued a Swiss buyer, defendant, for payment of the delivery of granite materials. While neither the application of the Convention nor the payment obligation in principle were in dispute, the question arose whether payment had to be made in Italian lire or in Swiss francs.
The Court noted that the CISG does not deal with the currency in which the purchase price has to be paid, which is an issue to be determined in accordance with the law applicable to the contract [article 4 CISG]. In the present case, the contract was governed by Italian law, pursuant to which the seller had the right to receive payment in Italian lire.
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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 Convention (issues excluded): currency in which purchase price has to be paid]; 53A [Buyer's obligation to pay price of goods]; 78A [Interest on delay in receiving price: rate set by domestic law]
4B [Scope of Convention (issues excluded): currency in which purchase price has to be paid];
53A [Buyer's obligation to pay price of goods];
78A [Interest on delay in receiving price: rate set by domestic law]
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CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=369&step=Abstract>
German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER)/Revue suisse de droit international et de droit européen (1999) 192-193;  Transportrecht Beilage "Internationales Handelsrecht" 12
CITATIONS TO TEXT OF DECISION
Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/419.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=369&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
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Queen Mary Case Translation Programme
30 June 1998 [C1 98 9]
Translation [*] by Mariel Dimsey [**]
A. On 26 September 1997, S__ S.p.A. [Seller] submitted a claim against J__ S__ AG [Buyer] to the B__ District Court containing the following pleadings:
The [Seller] explained that the [Buyer] had twice obtained granite stones from it. The corresponding invoices remained undisputed, but were not paid despite reminders.
B. The claim and statement of claim were received by the [Buyer] on 3 October 1997, with the setting of 3 November 1997 as the deadline for making a response. On 11 November 1997, the District Court Judge granted the [Buyer] a final time limit of ten days in which to answer the claim and explained the consequences of default. As no response was submitted, the District Court Judge sent the files to the Cantonal Court on 8 January 1998, for the purposes of examining the default and, potentially, to hand down a default judgment.
REASONING OF THE COURT
The Cantonal Court states the following reasons for judgment.
1. The procedural requirements, namely the territorial and subject-matter jurisdiction of the court, are to be examined ex officio (Art. 152 Valais Civil Procedure Regulations (ZPO)). The [Seller] is located in Italy.
a) According to Art. 2 Lugano Convention, which came into effect in Switzerland on 1 January 1992 and in Italy on 1 December 1992, persons who have their place of residence in the sovereign territory of a Contracting State, can be made the subject of legal proceedings in the courts of that State regardless of their nationality. As the parties have neither made an agreement as to jurisdiction nor is there exclusive jurisdiction under the Lugano Convention (Art. 16) and the [Buyer] has its place of residence in B__G, the courts in question have jurisdiction.
b) In the first instance, the Cantonal Court decides legal disputes that can be appealed to the Swiss Supreme Court (Bundesgericht), with the exception of those concerning the status of persons (Art. 5(1) ZPO). The jurisdiction of the Cantonal Court, as the only cantonal instance, therefore usually depends on the ability of the subject matter of the dispute to be appealed. In financial disputes, an appeal to the Swiss Supreme Court is generally allowed if the value of the dispute amounts to at least Sfr 8,000 (Art. 46 Swiss Federal Code on Court Organization (Bundesgesetz über die Organisation der Bundesrechtspflege (OG))).
With an appeal to the Swiss Supreme Court, the violation of federal law (including the public international law agreements concluded by the State) can be asserted (Art. 43(1) OG). The conflict of laws rules of Swiss private international law are also part of federal law (Art. 43(1) OG; Poudret, paras. 1, 2, 3 on Art. 43 OG). According to Art. 43a(1) OG, the following matters, among others, can be alleged in an appeal: the appealed decision did not apply foreign law in the way set out in Swiss private international law (provision a); or the appealed judgment incorrectly determined that the establishment of foreign law was impossible (provision b). Whether, however, foreign law has been correctly applied, cannot be examined by the Swiss Supreme Court in the appellate instance, except in civil law disputes of a non-financial nature (Art. 43a(2) OG).
c) In the present case, the [Seller] is asserting a claim of Sfr 9,137.40 (plus interest), whereby the value of the dispute exceeds the appeal amount. As the [Seller], in this regard, is located in Italy and the [Buyer] has its place of residence in Switzerland and there is, thereby, an international legal relationship, the law according to which the dispute must be decided is to be further examined.
d) The United Nations Convention on Contracts for the International Sale of Goods ("Vienna Sales Law" / "CISG", in force in Switzerland since 1 March 1991) is applicable in the present case, as, according to Art. 1(2) IPRG, the CISG, as a public international law treaty, takes precedence over the IPRG (BGE 122 III 46).
e) From a substantive law point of view, the requirements for the application of the CISG are also fulfilled (Art. 2 CISG). The present case is concerned with the purchase of chattels. Arrangements, according to which the parties could have agreed to exclude the Convention (Art. 6), are lacking. The present sales contract is, thereby, to be judged under the CISG. The value of the dispute is Sfr 9,137.40; thereby, the first-instance jurisdiction of the Cantonal Court is established. Consequently, the Cantonal Court also has to address the issue of whether the requirements for granting a default judgment are fulfilled (ZWR 1994 p. 126 et seq.).
2. a) According to Art. 113 ZPO, a party defaults when it does not carry out a legal act (Rechtsvorkehr) or another procedural obligation within the time-limits set in conformity with the law. Such a legal act, the failure to undertake of which results in the consequences of Art. 114 ZPO, is the response to the claim (ZWR 1990 p. 108 E. 2a). In the present case, the District Court Judge set the [Buyer] the time-limits in which to answer the claim in conformity with the law and indicated the consequences of default. Despite this, the [Buyer] failed to submit an answer within these time-limits. It also failed to cite any excuse for such failure within the meaning of Art. 120 ZPO, with the consequence that [Buyer] is to be regarded as having defaulted and a default judgment is to be handed down against it (Art. 114(2) ZPO).
b) According to Art. 114(3) ZPO, the non-defaulting party should be allowed its claim, provided that such claim does not appear to be obviously unjustified. According to the case law of the Cantonal Court, this provision must be read in conjunction with Art. 115(2) ZPO, according to which the facts submitted by the appearing (non-defaulting) party are to be recognized as correct; those from the non-appearing (defaulting) party should, however, only be accepted to the extent that they are proved (2nd sentence). The decisive version of the facts is, therefore, to be taken from the factual claims of the non-defaulting party, provided that there is no evidence to the contrary in the file. However, the claims of the non-defaulting party may only be allowed to the extent that they are established in the applicable law on the basis of the version of the facts determined by the court (ZWR 1992 p. 205 E lc with further references).
3. a) According to the factual claims of the [Seller] and the files provided, the following version of the facts occurred:
On 19 June 1996 and on 29 July 1996, the [Seller] delivered granite stones to the [Buyer]. The [Buyer] accepted the deliveries and did not object to them. According to the standard terms of sale, net payment was to be made within thirty days. The invoices for the deliveries mentioned above were sent to the [Buyer] on 19 June 1996 for Italian Lira 4,606,350 and on 29 July 1996 for Lira 6,697,600. Therefore, the total amount of the invoices was Lira 11,303,960. The [Buyer] refused to pay the invoices despite receiving reminders.
b) According to Art. 30 CISG, the seller is placed under a duty by the sales contract to deliver the goods in conformity with the contract (Art. 35(1) CISG), to hand over the documents relating to them and to transfer ownership in the goods. By way of contrast, according to Art. 53 CISG, the buyer is obliged to pay the purchase price and accept the goods, whereby Art. 58 CISG lays out the presumption of simultaneous performance. If the point in time of payment is determined under Art. 58 or set out in the contract, there is no need for any further demand for payment under Art. 59 CISG. If the buyer does not fulfil its payment obligation as this point in time, neither a reminder nor the setting of a time-limit is required in order for the seller to commence exercise of its rights for default. The point in time for payment resulting from the contract is, according to Art. 58 CISG, an expiry date (Verfalltag) analogous to Art. 102(2) OR. This means that, from this moment onwards, the buyer can be affected by the consequences of its breach of contract (Wiegand, Die Pflichten des Käufers und die Folgen ihrer Verletzung, in Berner Tage für die juristische Praxis 1990, p. 156).
c) Within the scope of default proceedings, it is to be assumed that the goods invoiced by the [Seller] to the [Buyer] were ordered by the [Buyer] and delivered by the [Seller] and that these goods were free from defects. The amount of the purchase price of the delivered goods can be deemed undisputed in these proceedings, since the [Buyer] has never raised any objections whatsoever.
The CISG does not address the question of which currency the purchase price is due in. The currency of the contract is therefore to be determined under the law that would be applicable as the law of the contract, were the contract not subject to the CISG (Herber, Möglichkeiten der Vertragsgestaltung nach dem UN-Kaufübereinkommen, in Berner Tage für juristische Praxis 1990, p. 235). Similarly, the right of a contracting party to require (seller's right of choice (Wahlschuld)) or to make (buyer's right of replacement (Ersetzungsbefugnis)) payment in a currency other than the contractual currency is also not covered by the Convention. Domestic law regulates such questions (Herber/Czerwenka, Internationales Kaufrecht, Commentary, Art. 53 para. 5 et seq.). Art. 118 IPRG makes reference to the Hague Convention. According to Art. 3(1) of this Convention, in the case of a lack of choice of law, the sales contract is subject to the domestic law of the country in which the seller was usually located or had its place of business at the time at which it received the order. However, the Hague Convention provides for an exception in favor of the buyer's law in Art. 3(2) if the order was received by the seller or its representative, agent or commercial travellers in the country of the buyer.
According to these conflict of laws rules, Italian law is thereby decisive. The characteristic performance, namely the delivery of granite stones, is that of the [Seller], which is located in Italy, and as the circumstances of the deliveries have not been recorded in the file, its place of business it to be regarded as decisive. According to Art. 1277 of the Italian Civil Code, the creditor is to require the debt in Lira (cf. also ZWR 1997 p. 177 et seq.). The [Seller]'s invoices were made in Lira; however, in the legal claims, the amount due was converted to Swiss franks. The [Seller] is to be judicially allowed its claim in Lira. The [Seller]'s claim thereby amounts to 11,303,960 Lira.
The total claimed amount of 11,303,960 Lira is owed by the [Buyer]. As the payment condition "30 days net" is noted on each invoice, it may be assumed within the scope of these proceedings that, after the expiry of this time-limit, the [Buyer] went into default without further reminder for the invoiced amount due (Art. 58 CISG) and thereby was required to pay default interest. According thereto, default interest is due on 4,606,360 Lira from 19 July 1996 and on 6,697,600 Lira from 29 August 1996.
d) Art. 78 CISG does not address the amount of default interest, which is why the law applicable under the conflict of laws rules is also decisive here (Art. 7(2) CISG; Herrmann, Anwendungsbereich des Wiener Kaufrechts - Kollisionsrechtliche Probleme, in Berner Tage für die juristische Praxis 1990, p. 98 and Weber, Vertragsverletzungsfolgen: Schadenersatz, Rückabwicklung, vertragliche Gestaltungsmöglichkeit, ibid, p. 208).
According to Art. 1284(1) and (2) of the Italian Civil Code, the statutory rate of interest is 10%. Interest that exceeds this amount must be determined in writing. In the present case, such an arrangement has not been claimed and is also not evident from the file. As the [Seller] asserts a rate of 7%, which is lower that the statutory default interest, it is to be allowed the interest claimed. (cf. also KGE dated 28 October 1997 G. c N. T. Sàrl, in SZIER, 1/1998, p. 77 et seq.).
4. The procedural costs are to be borne by the [Buyer] in accordance with the outcome of the proceedings (Art. 302 ZPO).
[Seller] may enter a default judgment within a time limit of ten days from its issuance. For this purpose, it must summon the opposing party by legal application (Rechtsbot) (in three copies, two of these on stamped paper) before the judge who briefed the proceedings, in order to balance the procedural costs (including those for the day-trip for the setting-aside proceedings) and to negotiate over the main issue. If the party who wishes to avoid the default judgment does not appear at the setting-aside proceedings, this judgment will become final. If, however, the request to set aside is upheld, the proceedings are to be re-commenced at the same point at which they ceased to be followed by the defaulting party.
Issued as a legal judgment on 30 June 1998
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of Switzerland is referred to as [Buyer]. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sfr]; amounts in the currency of Italy (Italian Lira) are indicated as [Lira].
Translator's notes on other abbreviations: AG = Limited Liability Company (Switzerland); BGE = Entscheidenungen des Schweizer Bundesgerichts [Official Reporter of Cases of the Swiss Supreme Court] IPRG = Bundesgesetz über das internationale Privatrecht [Swiss Code on the Conflict of Laws]; KGE = [Official Reporter of Case Law of the Canton Valais]; OG = Bundesgesetz über die Organisation der Bundesrechtspflege [Swiss Federal Code on Court Organization]; S.p.A. = Limited Liability Company (Italy); SZIER = Schweizerische Zeitschrift für internationales und europäisches Recht [Swiss Journal of International and European Law]; ZPO = Zivilprozessordung [Civil Procedure Regulations, Canton Valais]; ZWR = Zeitschrift für Walliser Rechtsprechung [Journal of Valais Case Law].
** Mariel Dimsey, LL.M., is a Research Assistant and Teaching Assistant at the University of Basel.Go to Case Table of Contents