Data
- Date:
- 25-10-2012
- Country:
- Poland
- Number:
- V ACa 422/12
- Court:
- Court of Appeals in Gdańsk
- Parties:
- --
Keywords
SET-OFF – MATTER NOT COVERED BY CISG (ART. 4) – RECOURSE TO OTHERWISE APPLICABLE LAW
RIGHT TO INTEREST (ART. 78 CISG) - CISG SILENT AS TO APPLICABLE RATE - DETERMINED ACCORDING TO OTHERWISE APPLICABLE LAW
Abstract
[CLOUT case no. 1589. Abstract prepared by Bartosz Jędryszczyk and Maciej Zachariasiewicz, National Correspondent].
The Polish buyer and the German seller were in a commercial relationship for the sale of carpets. There was no written agreement between the parties but the details of that relationship were agreed upon orally. The orders were made by the buyer by e-mail, the carpets were delivered and received and afterwards the seller would issue the invoices for the goods. Approximately 10 orders were made in total.
Before the Court of first instance, the seller claimed that the buyer failed to make payments of four invoices while the buyer argued that parts of the carpets were damaged, which resulted in complaints from the buyer’s own clients.
The Court of first instance decided that since Poland and Germany are signatories to the CISG, the Convention applies in accordance with Article 1(1)(a). The Court stated that only in matters not regulated by the CISG, the law of Germany applies. Nevertheless, with respect to the issue of set-off as well as the rate of interest, it applied the rules of the Polish Civil Code.
The Court ruled that, in accordance with Article 53 CISG, the buyer should have paid the price for the goods and, in accordance with Article 78 CISG, the seller is entitled to interest for the delayed payment. As the CISG remains silent on the rate of interest, the calculation of the interest due was made in accordance with Polish law (reference was made to Article 7(2) CISG).
On appeal, the buyer argued, inter alia, that a wrong substantive law had been applied by the Court.
The Court of Appeals held that the decision of the lower court to apply the Convention was correct. However, the Court stated that the CISG does not govern set-off or limitation of claims and its prerequisites. Making reference to Article 7(2) CISG, the Court applied the closest connection test provided for in the Rome Convention 1980 (Article 4) of which both Poland and Germany are signatories. According to the Convention, when the law applicable to the contract has not been chosen by the parties, the contract shall be governed by the law of the country with which it is most closely connected. Since the parties did not choose the law applicable to their contractual relationship, the Court decided that the German BGB governs set-off and limitation of claims since the contract was most closely connected with the place where the party who is to affect the characteristic performance of the contract (i.e. the seller) has its place of business. Therefore, the decision of the Court of the first instance to apply the Polish Civil Code with respect to those issues was found incorrect.
With regard to the interest rate (Article 78 CISG), the Court of Appeals explained that Article 7(2) CISG points to the law applicable to the contract and is decisive in this matter. Making reference to existing case law (including a judgment of the German BGH) and arbitration awards, the Court decided that the interest rate shall be awarded in accordance with the law determined by the conflict of law rules of the forum. Since German law was applicable to the contract, and because different issues under a contract should not be governed laws of different states (no dépeçage), the German BGB was found to determine the rate of interest due in the case at hand.
Fulltext
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Source
Original in Polish:
- available at http://orzeczenia.ms.gov.pl
Case Law on UNCITRAL Texts, A/CN.9/SER.C/ABSTRACTS/171}}