Data

Date:: 24-06-2010
Country:: Argentina
Number:: 40919/2008
Court:: Cámara Nacional de Apelaciones en lo Comercial de Buenos Aires - Sala F
Parties:: Sanovo International S.A. v. Ovoprot International S.A. S/ Ordinario

Keywords

BURDEN OF PROOF - MATTER NOT EXPRESSLY SETTLED BY CISG (ART. 7 CISG) - RECOURSE TO DOMESTIC LAW

FUNDAMENTAL BREACH BY SELLER (ART. 45 CISG) – BUYER'S RIGHT TO CLAIM DAMAGES – LOSSES SUFFERED DUE TO SELLER’S BREACH (ART. 74 CISG)

DAMAGES IN CASE OF SUBSTITUTE TRANSACTIONS (ART. 75 CISG) – LACKING PROOF OF PRICE IN SUBSTITUTE TRANSACTION, DAMAGES CALCULATED TAKING INTO CONSIDERATION PRICE CHARGED BY SELLER FOR THE SAME TYPE OF GOODS IN CONTRACTS WITH THIRD PARTIES

Abstract

An Argentinian company (seller) and a Danish company (buyer) concluded two contracts for the supply of egg yolkes and egg powder. After the seller failed to deliver the goods, the parties entered into new contracts which replaced the old ones. Since the seller failed again to fulfill its obligations, the buyer brought an action against it claiming damages.

By applying Argentinian law, the Court of First Instance found that the seller had breached its obligations under the contract, but that the buyer had failed to demonstrate the damage resulting therefrom. The buyer appealed.

The Court of Appeal held that CISG was applicable as the parties to the contract had their places of business in different Contracting States (Art. 1(1)(a) CISG).

With respect to the issue as to which party had to provide evidence regarding an alleged breach of contract, after recalling that CISG does not expressly address the matter of the burden of proof, the Court turned to the relevant provisions of the law applicable by virtue of the rules of private international law (i.e. Argentinian law). As a result, the Court affirmed that it was up to the seller to demonstrate that it had actually delivered the goods to the buyer and, since such evidence was lacking, considered the seller as not having fulfilled its obligations under the contract.

As to the buyer’s request for damages, the Court noted that damages could not be calculated on the basis on Art. 76(1) CISG, as in the case at hand the buyer had entered into a cover sale. Notwithstanding this, Art. 75 CISG could not apply either since the buyer had failed to give evidence of the price in the substitute transaction. Moreover, the Court held that said provisions of CISG could not apply, as the buyer had not given proper notice of termination of the contract (Art. 26 CISG).

However, the Court found that the buyer was entitled to damages under Arts. 45(1)(b) and 74 CISG, and in calculating their amount, took into consideration the price (fully proven by the buyer) the seller had charged for the same type of goods in contracts with third parties stipulated in the same period, plus a 5% increase to cover the shipping costs.

Fulltext

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Source

Original in Spanish:
- available at the CISG-Spain and Latin America website, http://www.uc3m.es}}