Data

Date:
11-12-2008
Country:
Poland
Number:
IV CSK 331/08
Court:
Supreme Court of Poland
Parties:
--

Keywords

BUYER'S FAILURE TO RETURN FOR UNSOLICITED GOODS AFTER RECEIPT - QUESTIONED WHETHER IT AMOUNTS TO TAKING DELIVERY PURSUANT TO ART. 52 CISG

Abstract

[CLOUT Case 1303; abstract prepared by Maciej Zachariasiewicz, National Correspondent]

The Polish producers of artistic jewellery concluded an exclusive sales contract with the French buyer in 1986. The cooperation continued for many years but became troublesome with deliveries effectuated around early 2000. Those deliveries were supplemented by unsolicited new models of jewellery worth some 33,000 francs. The French buyer refused to pay for the unsolicited goods and it failed to make payments for the ordered products that were most recently delivered. Eventually, the buyer made further orders and promised to pay the outstanding debts, but the Polish sellers refused to deliver. Later on, in order to recover moneys of the unpaid goods, the Polish sellers empowered a Swiss company to carry out the enforcement of debts, but revoked the mandate half a year later, however not informing the French buyer about the revocation. Shortly after that, the French buyer returned the unsolicited goods by sending them back to the address of the Polish sellers. The sellers in turn refused to accept the goods arguing that they had not authorized such a method of settlement of accounts.
The Polish sellers sued for the unpaid debts. The Circuit Court held at first instance that although the buyer questioned that it had ordered the new models, it did not refuse to take delivery. Rather, its behaviour indicated that it accepted delivery and was thus obliged under Article 52 CISG to pay for it at the contract rate. Consequently, the Circuit Court ordered the French buyer to pay for the goods. The Court of Appeals confirmed.

The French buyer brought an appeal to the Supreme Court, arguing that the application of Article 52 CISG was not justified under the circumstances of the case. In particular, it alleged that not returning the unsolicited goods after their receipt cannot be treated as taking delivery under Article 52 CISG. The Supreme Court found that the review carried out by the Court of Appeals was insufficient, because it failed to assess whether not returning the goods by the buyer could have been treated as taking delivery under Article 52. In particular, the Court of Appeals did not examine to what extent the Circuit Court’s failure to hear a witness, who was to testify on crucial issues of the unsolicited goods, and the lack of their return by the buyer, could have affected the outcome of the case. For that reason, the judgment of the Court of Appeals was reversed and the case was remanded for further consideration.

Fulltext

Original in Polish:
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Source

Case law on UNCITRAL texts (http://www.uncitral.org/uncitral/en/case_law.html)
[A/CN.9/SER.C­/ABSTRACTS/137]}}