Data

Date:
12-04-2016
Country:
Slovenia
Number:
VSM sodba I Cpg 10/2016
Court:
High Court of Maribor
Parties:
--

Keywords

SALE WITH SUPPLY OF LABOR OR OTHER SERVICES AS NOT PREPONDERANT PART OF THE SELLER'S OBLIGATION - GOVERNED BY CISG (ART. 3(2) CISG)

Abstract

[CLOUT Case no. 2229. Abstract prepared by Ana Vlahek and Tjaša Kalin]

The parties, both with places of business in the CISG contracting States,concluded a contract for manufacture and delivery of a mill for scrap iron. The seller (applicant) demanded additional payment, stating that they delivered a stronger engine than it was originally agreed upon. When the buyer (defendant) refused to pay, the seller sued them before the court of first instance. The defendant argued that the claim had not been brought on time and that there was no agreement for a stronger engine between the parties. The court of first instance applied the CISG: although the contract had some elements of a service contract (manufacturing the mill), it still had to be
regarded as a sales contract. To assess the statute of limitations, the court applied relevant provisions of the Italian civil code (“Codice civile”) and dismissed the defendant’s claim. The defendant filed an appeal claiming that the CISG cannot be applied because the contract is not a sales contract.

The High Court of Maribor addressed the question of application of the CISG by stating that the court of first instance correctly applied the Convention, and by giving an explanation why the CISG is applicable.

Based on the factual statements of both parties and the content of the contract, the court of first instance decided that the contract is a sale of goods contract, despite having some service elements. The defendant stated that the composition of the mill is an essential part of the applicant’s obligations, and therefore the contract is not a sale of goods contract.

The High Court applied article 3 CISG to determine whether the contract is a sale of goods contract. The High Court explained in detail that the applicant (buyer) did not supply the materials necessary for producing the mill (art. 3(1) CISG), and that the parties did not determine the manufacture as the preponderant part of the seller's obligation (art. 3(2) CISG). Hence, the CISG is the applicable law for the contract in question.

The High Court dismissed the appeal and confirmed the judgment of the court of first instance.

Fulltext

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Source

CASE LAW ON UNCITRAL TEXTS (CLOUT) (http://www.uncitral.org/uncitral/en/case_law.html), A/CN.9/SER.C/ABSTRACTS/CISG/2229}}