Data
- Date:
- 27-11-2007
- Country:
- Greece
- Number:
- 43945/2007
- Court:
- Monomeles Protodikeio Thessalonikis
- Parties:
- Johnson SA v. Liviana Conti Srl
Keywords
INTEREST RATE - MATTER EXCLUDED FROM THE SCOPE OF CISG (ART. 7(2) CISG)
SET-OFF - MATTER EXCLUDED FROM THE SCOPE OF CISG (ART. 7(2) CISG)
JURISDICTION - EUROPEAN COUNCIL REGULATION NO. 44/2001 ON JURISDICTION AND RECOGNITION AND ENFORCEMENT OF JUDGEMENTS IN CIVIL AND COMMERCIAL MATTERS - JURISDICTION OF COURT FOR PLACE OF PERFORMANCE - REFERENCE TO ART. 31 CISG
PRICE - PAYABLE WHEN SELLER PLACES GOODS OR DOCUMENTS AT BUYER'S DISPOSAL (ART. 58(1) CISG)
Abstract
A Greek seller and an Italian buyer entered into a contract for the sale of various types of ready-made garments. The goods were delivered in five installments between January and February 2006. Although the buyer received all the ordered products, it failed to pay for the last two installments. Therefore, the seller brought an action against it seeking to obtain payment of the outstanding amount. The buyer opposed the seller’s claim, contending that certain pieces of garments had not been delivered, that some items lacked the promised quality, and other clothes were flawed. Also, the buyer raised set-off with a counterclaim deriving from the expenses it had incurred for repairing the defective goods.
The Court had firstly to ascertain whether it had jurisdiction to hear the case. To this end, it recalled that, under Art. 5 (1)(b) of European Council Regulation (no. 44/2001) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, in matters relating to a contract a person domiciled in a contracting State may be sued in the Court for the place of performance of the obligation in question and that in, the case of a sales contract, the place of performance is “the place [...] where, under the contract, the goods were delivered or should have been delivered”. To identify that place, the Court found it necessary to look at the substantive law governing the sales transaction, i.e., CISG, and it concluded that it had jurisdiction to resolve the dispute, as the goods had been delivered at the buyer’s agent place in Greece.
As to the merits, the Court observed that while the issue of payment is expressly regulated in the Convention, the matters of the applicable interest rate and set-off are not specifically addressed by any particular provision therein. As, in the Court’s view, those matters amounted to “external gaps” of the Convention, the Court ruled that they had to be resolved according to the applicable law as determined by the private international law rules of the forum (CISG art. 7(2)), i.e., Greek law.
Furthermore, the Court noted that, under Art. 58(1) CISG, absent a specific agreement between the parties, payment of the price should be effected when either the goods or the documents relating to the goods are placed at the buyer’s disposal. Interests on the sum in arrears accrue from that point in time without the need of any notice to the creditor.
In light of the foregoing, the Court found for the seller and condemned the buyer to pay the outstanding amount plus interests.
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