Data
- Date:
- 03-06-2019
- Country:
- Japan
- Number:
- 2018(Wa)No.9632
- Court:
- Tokyo Chiho Saibansho [District Court]
- Parties:
- Rolser S.A. v. Global Living
Keywords
DAMAGES (ART. 74 CISG) - ATTORNEY'S FEES - NOT RECOVERABLE
RIGHT TO INTEREST (ART. 78 CISG) - INTEREST RATE - MATTER NOT EXPRESSLY SETTLED BY CISG - DETERMINED BY DOMESTIC LAW GOVERNING THE CONTRACT IN THE ABSENCE OF CISG
Abstract
[Abstract prepared by prof. Yasutoshi Ishida, Himeji-Dokkyo University]
In 2013, a Spanish seller concluded three sales contracts with a Japanese buyer regarding a total of 782 shopping carts for approximately 13,900 Euro. The parties also agreed that the buyer was to pay for the freight. The seller handed over the goods to the carrier and the goods were delivered to the buyer. However, the latter failed to pay the price for the goods and freight and was therefore sued in the Tokyo District Court.
The Court, referring to Arts. 53 and 62 CISG, ordered the buyer to pay the price.
The Court also stated that it would apply the law governing the contract in absence of the Convention to solve the issues not covered by the uniform law. In this regard, it referred to “The Act on General Rules for Application of Laws,” which is Japanese Private International Law. The Act stipulates that, in the absence of an agreement between the parties on choice of law, the applicable law is that of "the place most closely connected with the contract”. If only one party is to provide a characteristic performance, the law of the place of business of that party is presumed to be the law most closely connected with the contract.
Applying these provisions, the District Court held the otherwise applicable law was Spanish law.
As a result, regarding default interest for delayed payment, the Court, referencing Arts. 7(2) and 78 CISG, applied Spanish law. In Spain, the interest rate is set annually according to national budget legislation. Since the parties did not agree on a default interest rate, the Court applied the 4% annual interest rate in effect in Spain for the year 2013.
Moreover, in all three sales contracts, the buyer failed to make the payment for the freight. According to the standard terms and conditions, the carrier sought compulsory execution of payment against the seller, and the request was granted. The seller paid the freight on behalf of the buyer under a court order. The seller then sought reimbursement from the buyer, who never complied. The Court ordered the buyer to pay damages for the freight, along with accrued interest, and declared the seller entitled to recover the attorney’s fees.
Regarding the foreseeability of damages related to the freight and attorney’s fees, the Court fully referenced Art. 74 CISG and considered that the buyer was an importer who had conducted business with the seller for many years. Therefore, at the time the sales contracts of this case were concluded, the buyer could have foreseen that if it (the consignee) failed to pay the freight to the carrier, the carrier would seek payment from the plaintiff (the consignor) and pursue legal action against the plaintiff. The defendant could also have foreseen that, in such circumstances, the plaintiff would need to engage its corporate lawyer, incurring a fee and resulting in financial loss to the plaintiff.
Fulltext
Original in Japanese:
- available at www.cisg-online.org}}
Source
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