Data
- Date:
- 22-01-2014
- Country:
- Poland
- Number:
- I Aca 685/13
- Court:
- Gdansk Court of Appeal
- Parties:
- --
Keywords
APPLICATION OF CISG - BASED ON CHOICE-OF-LAW CLAUSE IN FAVOR OF LAW OF A CONTRACTING STATE
GOODS SUBJECT TO RAPID DETERIORATION - PARTY BOUND TO PRESERVATION MUST TAKE REASONABLE MEASURES TO SELL THEM
Abstract
[CLOUT Case no. 1587; abstract prepared by Angelika Bednarska]
A Polish seller and a French buyer concluded a contract for the sale of frozen
chicken fillets. The seller delivered the purchased goods, which the buyer intended
to resale to its business partner. This latter, however, refused to accept them,
because of pieces of bones found in a taken sample. The buyer made a complaint
and notified the seller of the non-conformity of the goods. The seller asked to
examine the goods in order to accept the complaint, but the buyer did not disclose
the place where the goods were stocked. Eventually, the buyer neither paid the price
nor returned the goods. The seller sued before a Polish court to recover the purchase
price.
The Court of first instance (District Court) ruled in favour of the Polish seller. The
Court explained that in the case at hand the CISG was applicable. The contract of
sale was concluded between parties having their place of business in different
States, both of which were CISG contracting States. Furthermore, the general
conditions of sale which governed the commercial relationship between the parties
determined Polish law as the applicable law and therefore the Convention would
also apply as part of Polish law.
The Court noted that the buyer’s main argument was the claim for damages for
non-conforming goods on the grounds of Article 74 CISG. Contrary to the buyer’s
argument, it could not be held that the seller had accepted the buyer’s complaint
about non-conforming goods. The seller in fact had asked to examine the goods, but
the buyer did not indicate their venue, it retained them and refrained from
contacting the seller. The seller thus had no opportunity to carry out an inspection.
The Court stated that in order for the buyer to exercise its rights, it was necessary to
return the non-conforming goods to the seller. Moreover, before the court
proceedings started the buyer neither claimed damages nor invoked set-off. The
buyer did not demonstrate the amount of damages either.
The Court of Appeal dismissed the appeal filed by the buyer. The Court found that
pursuant to Article 53 CISG and Polish civil law provisions, the burden of proof
concerning the non-conformity of the goods rests on the buyer. The goods were
delivered and taken without any objection. Hence, in the event of contesting the
conformity of the goods and refusing the payment of the price, it is for the buyer to
prove its allegations. In the case at hand, the buyer neither demonstrated the
non-conformity of the goods nor the related damages. The buyer did not declare the
contract avoided either. For these reasons, there was no point in invoking the
potential responsibility of the seller on the basis of Article 74 CISG.
The Court of Appeals further noted that the purchased goods were produced in
April 2011 for consumption by November 2012 (i.e. within 18 months). Under
Article 88 (2) CISG, if the goods are subject to rapid deterioration or their
preservation would involve unreasonable expense, a party who is bound to preserve
the goods must take reasonable measures to sell them. Therefore, the buyer was not
entitled to invoke the right to retention of the goods, as it concerned short shelf life
products. The decision of the Court of first instance was thus upheld and the buyer
was obliged to pay the full price with interest thereon.
Fulltext
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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/171
Original in Polish:
-available at http// www.orzeczenia.ms.gov.pl}}