CISG
SLOVAKIA

OS TT - 15Cb/15/2009en

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC

[slovenske znenie]

 

The District Court of Trnava, decided by a single judge, Mgr. Renata Gavalcova, in the case of Plaintiff B.N.G.C., [Seller], with its registered office in E., ___, Federal Republic of Germany, …, , versus Defendant D.B. [Buyer], with his place of business in T. ___, [Slovak Republic], regarding payment of 23,627.11 Euro [Eur] and appurtenances

 

has decided as follows:

 

The court dismisses the action.

 

[Seller] is obliged to pay [Buyer] the reimbursement of costs of the proceedings amounting to 3,469.47 Eur, within three days after the judgment comes into force.

 

               

REASONING

[Seller] asserted, by its action filed with the court on 31 October 2008, its right to payment of 711,790.39 Slovak koruna [Sk] / 23,627.11 Eur with appurtenances, claiming the right to payment of the purchase price for delivered goods.

 

The Court issued the order to pay of 16 December 2008, rec. no. 31Rob/318/2008-118 where [Buyer] filed a protest against the decision in the prescribed period and the court therefore cancelled it with reference to sec. 174 part 2 of the Civil Procedure Code.

 

The Court gathered evidence by interrogating the parties, the witnesses Ing. M.H. and V.I., reading the submitted documents, primarily the invoices no. 2006R0101-116000, no. 2006R0101-116001, no. 2006R0101-122246, no. 2006R0101-123082, no. 2006R0101-123525, no. 2006R0101-123955, no. 2006R0101-124481, no. 2007R0101-002866, no. 2007R0101-004483, no. 2007R0101-005618, no. 2007R0101-011748, no. 2007R0101-019454, no. 2007R0101-028532, no. 2007R0101-035771 and thereby determined the following factual and legal circumstances of the case:

 

[Seller] claimed in its action that as a foreign legal entity it entered a sales relationship with [Buyer] in 2006 without any written contract of sale and was delivering the goods that [Buyer] ordered to it (plants) and [Buyer] always handed over the goods. The business relationship lasted until 2007 and [Seller] drew 14 invoices total that were not paid by [Buyer] on time. [Seller] argued that the relationship should be qualified under the UN Convention on contracts for the international sale of goods published in the Collection of Acts as no. 160/1991 Coll. The contracts of sale were concluded orally and [Seller] proved their concluding and delivery of the goods by testimonies of the witnesses Ing. M.H. and V.I.. The submitted invoices also contain the customer number attached to [Buyer] by [Seller] in its database and also specify the number of each purchase order made. From [Buyer]’s record in the Trade Register of the Slovak Republic, it is clear that [Buyer] also sells flowers and this activity presents its primary object of business. [Seller] stated in its testimony that the contracts were concluded by its business representative Ing M.H. upon oral purchase order made by [Buyer] and [Seller] subsequently delivered the goods (flowers, plants and seeds) to [Buyer]. No documents were signed by the time of delivery but [Seller] proved the deliveries by interrogation of Ing. M.H., who confirmed that the deliveries were made. The invoices were drawn after the deliveries based on the information from the business representative and were sent to [Buyer] by ordinary mail to Germany. [Seller] only had dealings with [Buyer] in 2006 and 2007, which are also considered in these proceedings. [Seller] was also delivering goods to [Buyer] in 2007, despite the fact that the invoices drawn in 2006 were not paid. In the end [Seller] pointed out that the witnesses’ testimonies proved that the contracts were concluded between the parties, the deliveries were made and [Buyer] failed the pay the price set out in the invoices. [Seller] explained that no written evidence could have been submitted to the court, as the deals were made in oral form and no written confirmations were made with respect to concluding the contract and the delivery of the goods but such conduct was in conformity with the practice established by [Seller] in Germany and was also observed in its dealings in the Czech Republic and Slovakia. The witness I. also stated in his testimony that he repeatedly urged [Buyer] by telephone to pay the invoices at which time [Buyer] promised to make payments but failed to do so.

 

[Buyer] stated at the hearing that the action should be dismissed, since there was no contract established between the parties, he did not hand over any goods from [Seller] and therefore there is no legal cause for [Seller]’s claim. [Buyer] admitted that it knows the witness M.H. who contacted it several times via telephone and inquired whether it wants to buy flower plants, but no plants were actually ordered by [Buyer]. [Buyer] also confirmed that he personally met the witness M.H., since the witness wanted [Buyer] to store his goods, as [Buyer] had facilities available for storage. [Buyer] explained that the goods of the witness H. stored in its facilities were not resold by [Buyer] to its customers and that it sold only its own plants. [Buyer] therefore asked the court to dismiss the action, since [Seller] did not prove that a contract was concluded by the parties and that the goods valued at 23,627.11 Eur would be delivered to [Buyer]. [Buyer] argued that the testimony of the witness Mr. I. is irrelevant, as Mr. I. untruly stated that he visited [Buyer] in its greenhouse. The falsity of this statement is evidenced by the fact that the description of the greenhouse provided by the witness was incorrect. [Buyer] also challenged the testimony of the witness Mr. H. arguing that even [Seller] was not satisfied with its work and terminated its employment. According to [Buyer], the witness did not prove the deliveries, did not provide any evidence for its statements and did not even specify in what amount and how many times the goods should have been delivered to [Buyer]. [Buyer] therefore concluded that the court should dismiss the action, since [Seller] did not sustain its burden of proof and has no right to payment of the purchase price with reference to articles 58, 59 of the UN Convention.

 

The court determined from the interrogation of the witness Ing M.H. that he worked for [Seller] from October 2004 until February 2007 as an employee and that he had known [Buyer] even before that. He knew that [Buyer] was conducting business with plants and therefore he gave [Buyer] prospects from [Seller] also containing the prices. The witness stated that he delivered the plants to [Buyer] more than two times and did not require any written confirmation from [Buyer] when handing over the goods. His duties were finished as soon as he delivered the goods to [Buyer]. [Seller] subsequently drew an invoice and sent it to [Buyer] by mail. The witness also explained that he delivered the goods to the customers without any deposit payment made by them. The witness further stated that he used [Buyer]’s storage facilities for storing his plants when supplying them in Slovakia, precisely in the winter of 2006 and did not pay any remuneration for storing. During the years 2004 to 2007, the witness had over 100 customers in Slovakia and considered [Buyer] to be one of his major customers, as he used to buy tens of pallets of plants. The witness was not able to recall how many times he made deliveries for [Buyer] but repeatedly remarked that it must have been more than two times. The witness described that upon oral purchase orders from [Buyer], he forwarded them to [Seller], specifying the name, surname and address of the customer, including his identification number and [Seller] then assigned a customer number. The goods were delivered packed in boxes with open tops and [Buyer] had a chance to examine the plants. The witness was not, however, able to remember to whom he delivered the goods in each case, whether directly to [Buyer]’s representative or just by placing them in [Buyer]’s greenhouse where he also stored his own goods.

 

The court determined from the testimony of the witness V.I. that he has worked for [Seller] for more than eight years as a sales agent for the Czech Republic and is responsible for concluding contracts on behalf of [Seller] with third parties. The witness stated that he forwarded customers’ purchase orders to [Seller]; the processing of the order took approximately 2 months. [Seller] then notified the witness when the plants were grown and the witness informed the customer that he could hand over the goods. The handing over of the goods was never confirmed in writing, as the relationships were based on mutual trust. The witness explained that he knows [Buyer] personally, since he visited [Buyer] accompanied by Mr. H. in [Buyer]’s greenhouses in B. The witness noticed that [Buyer] had planted flowers supplied by [Seller] by identifying the plants’ growth and their origin. The witness urged [Buyer] by phone to pay the outstanding invoices. [Buyer] initially confirmed that it would pay the invoices, but no payment was actually made and [Seller] therefore filed an action against him.

 

Under article 5 part 1 a) b) of the Council Regulation no. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the person domiciled in the Member state (including the registered office or the place of business) may, in another Member State, be sued in matters relating to a contract, in the courts for the place of performance of the obligation where in such case, unless otherwise agreed, the place of performance of the obligation in question shall be, in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided.


Under article 1 of the Convention on the Contracts for the International Sale of Goods published under no. 160/1991 Coll., this Convention applies to contracts of sale of goods between parties whose places of business are in different States

a) when the States are Contracting States;

b) when the rules of private international law lead to the application of the law of a Contracting state.

 

The court found that since there was no agreement between the parties on choice of the applicable law, the court shall qualify the case with reference to article 1 part 1 of notice no. 160/1991 Coll., the UN Convention on contracts for the international sale of goods.

 

Under article 11 of the Convention, a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.

 

Under article 23 of the Convention, a contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.

 

Under article 30 of the Convention, the seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.

 

Under article 53 of the Convention, the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.

 

Under article 59 of the Convention, the buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller.

 

Under section 120 part 1 of the Civil Procedure Code, the parties to the proceedings are obliged to mark the evidence supporting their arguments. The court decides which evidence will be performed. The court can exceptionally perform also the evidence not marked by the parties to the proceedings, if such evidence is necessary for decision of the court.

 

With reference to the evidence gathered, the court found that [Seller]’s action is unjustified in its entirety, as [Seller] did not sustain the burden of proof in accordance with sec. 120 part 1 of the Civil Procedure Code with respect to proving concluding of the contract, performance of [Seller]’s obligation to deliver the goods to [Buyer] and [Buyer]’s failure to pay the purchase price in accordance with the UN Convention on contract for the international sale of goods. Although [Seller] argued that concluding of the contracts by the parties to the proceedings was proved by testimonies of witnesses Ing. M.H. and V.I., the court did not find that [Seller] sufficiently proved that the contracts were concluded, how much and how often [Seller] delivered the goods to [Buyer], what kinds of goods were actually delivered and what the agreed price was. From the testimonies the court found that there were at least two deliveries made and that [Buyer] stored the goods in the winter of 2006, but the amount of goods given was not specified and there was no indication of the purchase price. The witness V.I. only proved that he urged [Buyer] to pay the invoices claimed by [Seller]. Therefore, since [Seller] was not able to prove its arguments in accordance with section 120 part 1 of the Civil Procedure Court, the court dismissed the action in its entirety.

 

The Court ruled on the reimbursement of the costs of the proceedings with reference to sec. 142 part 1 CPC and granted [Buyer] full reimbursement of its costs, as it was successful in its defense in its entirety.


Instruction: An appeal against this judgment must be filed via this Court within fifteen days from its receipt.


District Court Trnava, 13 May 2010.

Mgr. Renata Gavalcova, Judge

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