Data

Date:
22-05-2019
Country:
Paraguay
Number:
44
Court:
Tribunal de Apelación en lo Civil y Comercial – Cuarta Sala
Parties:
Oscar Rafael Escobar Arza v. Procuraduría General de la República

Keywords

SERVICE CONTRACT - BETWEEN A PARAGUAYAN PROFESSIONAL AND A PARAGUAYAN STATE ENTITY - REFERENCE TO THE UNIDROIT PRINCIPLE IN ORDER TO CONFIRM THAT THE SOLUTION PROVIDED BY APPLICABLE DOMESTIC LAW WAS IN CONFORMITY WITH INTERNATIONAL STANDARDS

EXCEPTIO NON ADIMPLENTI CONTRACTUS - REFERENCE TO ART. 7.1.3 UNIDROIT PRINCIPLES (2010 EDITION) WHICH REFLECTS A PRINCIPLE VERY SIMILAR TO THE ONE EXPRESSED IN ART. 719 OF THE PARAGUAYAN CIVIL CODE

Abstract

A dispute arose between a Paraguayan professional (the Claimant) and the Paraguayan Technical Secretariat for Economic and Social Development Planning (hereinafter Respondent) in relation to the performance of a contract according to which Claimant had agreed to elaborate reports for the Respondent.

The First Instance Court rejected the claim for payment, affirming that Claimant failed to comply with his contractual obligations in time, thereby exonerating the Respondent of its duty to perform its consequent obligation.

Claimant appealed this decision, arguing that his performance was not extemporaneous as he had only committed to preparing a final report at the end of the contract (with no need to elaborate partial reports along the way). Further, the final report had no established timetable and was presented in a reasonable period. Therefore, the principle of exceptio non adimpleti contractus was not applicable in the case at hand since Claimant did comply with its contractual obligations.

The Appellate Court noted that the form of payment established in the contract (monthly installments for 6 months) showed that the Parties intended to perform the service monthly and that Claimant failed to demonstrate the compliance with this monthly performance. The Court also noted that the report in question was submitted after the contract’s 6-month period had expired. Thus, according to the Court, further proves the non-performance of the Claimant.

In confirming the First Instance ruling, the Court of Appeal referred to the Paraguayan Civil Code, which contemplates the principle of exceptio non adimpleti contractus in similar terms to Art. 7.1.3 of the Unidroit Principles. Therefore, the non-performance of the Claimant exonerated the Respondent of complying with its obligation.

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