Data

Date:
09-12-2021
Country:
Brazil
Number:
--
Court:
Appellate Court of the State of São Paulo
Parties:
Società Agricola Beoletto Aurelio & Mario v. Agropel Agroindustrial Perazzoli Ltda.

Keywords

APPLICATION OF CISG AS AN EXPRESSION OF MOST WIDESPREAD PRACTICES IN INTERNATIONAL SALES LAW - APPLICATION OF CISG AS SOFT LAW

Abstract

[CLOUT CASE no. 1976. Abstract prepared by Perrella Milani]

In 2017, an Italian company (the seller) filed a suit against a Brazilian company (the buyer), claiming that, in 2013, it had sold 5,040 boxes of kiwi Hayward which had not been paid by the buyer. The buyer argued that it had never bought the goods and that the seller had no written proof of the two alleged sales transactions. A lower court judge ruled in favour of the buyer. Subsequently, the seller appealed to the Appellate Court of the State of São Paulo.

The seller admitted that it no longer had the backup files that proved the existence of the transactions but contended that a contract of sale does not need to be concluded in or evidenced by writing, as per article 11 CISG. According to the seller, the Convention would apply by analogy, since the parties had entered into the sales agreement on 1 July 2014 and the CISG only came into force in Brazil on 16 October 2014.
The Court ruled that reasoning by analogy would be inadequate in this case, since the Brazilian legal framework was sufficient to solve the dispute and therefore analogy was unnecessary. Nevertheless, it acknowledged that the CISG should be applied as soft law, due to the fact that it is an expression of the most widespread practice of the international sale of goods, as decided in Anexo Comercial v. Noridane Foods, another Brazilian precedent that applied the CISG to a dispute that happened before the CISG entered into force in the country.

The Court also stated that both Italy and Brazil are Contracting States of the CISG, as per article 1(1)(a), and neither had lodged a declaration requiring contracts of sale to be concluded in or evidenced by writing, as allowed by article 12 CISG.
Furthermore, according to the ruling, documents issued by the Brazilian Foreign Trade Integrated System (SISCOMEX) proved that the goods had been delivered to the buyer at the port of destination. The fact that they had not been rejected by the buyer was sufficient evidence that the buyer agreed to the sale, in consonance with Art. 18(3) CISG.

In addition, when requested by the seller to pay for the goods, the buyer simply remained silent, instead of challenging the existence of the contract. The Court found that the proof of delivery of the goods combined with the behaviour of the parties led to the conclusion that the buyer had ordered and received the kiwis and failed to pay.
Therefore, the contract was found to be existent and valid in accordance with article 11 CISG. The decision cites the UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods (2016 Edition) and many similar precedents regarding the interpretation of article 11 CISG.

Fulltext

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Source

CLOUT Case no. 1976, A/CN.9/SER.C/ABSTRACTS/215}}