Data

Date:
30-05-2022
Country:
Paraguay
Number:
43
Court:
Tribunal de Apelación en lo Civil y Comercial – Cuarta Sala
Parties:
Marcelo Gomes de Azevedo v. Dekalpar S.A.

Keywords

DISTRIBUTION CONTRACT - BETWEEN A PARAGUAYAN GROWER AND A PARAGUAYAN DISTRIBUTION COMPANY - 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 IN A DISSENTING OPINION 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

Claimant, a Paraguayan grower, filed a claim against Respondent, an agricultural product distribution company, seeking payment after the unilateral termination of the latter according to the penalty clause contained in the distribution contract signed by the parties.

The First Instance Judge rejected the claim, considering that Claimant failed to present sufficient evidence to demonstrate that he had correctly performed the contract and that he was entitled to the commissions claimed. Claimant appealed the decision.

The Court of Appeal, consisting of three members, reached its final decision via majority. The majority determined that while Claimant had proved to have complied with his contractual obligations, Respondent had not demonstrated to have paid the penalty for unilateral termination. Therefore, the Appellate Court overturned the First Instance ruling and ordered the payment of the contractual penalty in favor of the Claimant determining its amount on the basis of amount agreed as advanced payment.

The dissenting opinion, by referring to the principle of exceptio non adimpleti contractus, contained in art. 719 of the Paraguayan Civil code (which reproduces, in its essence, the content of Art. 7.1.3 of the Unidroit Principles, as recognized by its commentary), affirmed that Claimant would have had to demonstrate the performance of his obligations in order to seek Respondent’s consequent performance. The burden of proving the sales record that entitled Claimant to receive the payment of the contractual penalty was, according to the dissenting opinion, exclusively on the Claimant. As the Claimant failed to provide sufficient evidence of the sales record that shows the commission owed, Claiamant's request was to be rejected and the First Instance ruling confirmed.

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