Data

Date:
10-06-2016
Country:
Sweden
Number:
NJA 2016 s. 465
Court:
Swedish Supreme Court
Parties:
--

Keywords

BURDEN OF PROOF - MATTER GOVERNED BUT NOT EXPRESSLY SETTLED BY CISG (ART. 7(2) CISG)

BURDEN OF PROOF OF CONFORMITY OF GOODS - TO BE DISTRIBUTED BETWEEN THE PARTIES

INTERPRETATION OF CONVENTION - RECOURSE TO CASE LAW AND SCHOLARLY WRITINGS (ART. 7)

ALIUD PRO ALIO - DOES NOT CONSTITUTE NON DELIVERY BUT AMOUNTS TO DELIVERY OF NON-CONFORMING GOODS (ART. 35 CISG)

Abstract

A Swedish seller and a Turkish buyer concluded a contract for the sale of 50 tons of copper, mined in the Democratic Republic of Congo. The goods were to be shipped from the port of Dar es Salaam (Tanzania) to Istanbul (Turkey). When the containers arrived in Istanbul and were inspected by the buyer, they were found to contain stones instead of copper. The buyer brought an action against the seller and demanded, inter alia, a refund of what he had paid under the contract. Both the first and second instance Courts ruled in favor of the buyer. The seller appealed before the Supreme Court.

After pointing out that the parties had agreed on the application of the Convention, the Supreme Court noted that the main issue it had to decide was which party would bear the burden to prove that the containers were loaded with the correct goods at the time of passing of risk.

The Court first observed that, in the system of the Convention, the case where the seller delivers something completely different from what has been agreed upon ('aliud pro alio') falls within the category of non-conforming delivery and must be decided according to the rules of Art. 35 ff. CISG.

Secondly, as to the passing of risk, the Court pointed out that the parties had agreed upon the application of the Incoterm 2000 CIF clause to the contract; as a result, the risk of loss or damage to the goods had shifted on the buyer once the goods had passed the ship’s rail at the port of loading.

With regards to the burden of proof, the Court recalled that, although CISG does not deal with the matter expressly, it is recognized by both scholars and case law that Art. 79 provides some guidance on the point, thus it can be considered as a reference point to solve questions concerning evidence within the system of the Convention (Art. 7(2) CISG). However, the Court noted, two different approaches exist as to the burden of proof relating to the conditions of the goods at the time of passing of risk. The first approach is exemplified by the principle ‘actori incumbit probatio’, meaning that the party that invokes a rule in its favor must prove that the conditions for its application are met. The second approach, instead, proposes to distribute the onus between the seller and the buyer, based on the securing of evidence argument. Holding that the second prevalent approach had to be followed, the Court concluded that the burden of proof that the goods conform with the contract when the risk passes is, in principle, allocated to the seller. However, if the buyer has received the goods without immediately notifying the seller that he considers them to be defective, the burden to prove that they were defective at the time of the passing of risk shifts to the buyer.

Furthermore, the Court addressed the issue relating to the standard of proof. Relying on scholarly opinion, the Court stated that the standard of proof should satisfy the standard of reasonableness, meaning that the party on which the burden is placed should provide evidence of the lack of conformity with a certain degree of certainty.

Considering the circumstances of the case, the Court concluded that the burden was on the seller to demonstrate that the goods were conforming to the contract at the time of the passing of risk. However, as the seller was not able to demonstrate in a reasonably convincing manner that it was the contracted goods in the form of copper that were loaded onboard the vessel, its claims had to be dismissed.

Fulltext

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Source

Original in Swedish and English translation:
- available at www.cisg-online.org}}