OS BJ - 1Cb/282/2007sk en

District Court Bardejov

29 October 2007 [1 Cb/282/2007]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC
[slovenske znenie]

The District Court of Bardejov, deciding by a single judge JUDr. Jana Dubivska, in the case of Plaintiff J. G.., a.s. [Seller], with its registered office in P. ___, Czech Republic represented by attorney JUDr. I.H. versus Defendant N.U. [Buyer], with its residence in B. ___ [Slovak Republic] …, regarding payment of 60,885.- Czech koruna [Kc] with appurtenances

h a s   d e c i d e d   a s   f o l l o w s:

The [Buyer] is o b l i g e d to pay to the [Seller] the sum of 60,885.- Kc and interest of 3.85 % annually on this sum for the period from 18 June 2006 until payment within fifteen days after the judgment comes into force.

The [Buyer] is obliged to pay to the [Seller] the sum of 4,380.- Slovak koruna [Sk] as a reimbursement of costs of the proceedings within fifteen days after the judgment comes into force on the account of attorneys’ fees of the [Seller].

REASONING

The [Seller] claimed in the proceedings by its action filed with the court on 25 May 2007 its right to payment of 60,885.- EUR with interest of 3.85 % annually on this sum for the period from 18 June 2006 until payment and reimbursement of costs of the proceedings, in this suit for payment of the purchase price for goods delivered to the [Buyer]. The [Seller] stated that under the contract of sale it delivered to the [Buyer] the goods (glass chaton raw materials, glass balls and chaton tips) amounting to 71,310.- Kc which were handed over by the [Buyer] and transported by its own vehicle. The [Seller] stated in the action that it billed the purchase price by invoice no. 160608957 of 12 May 2006 due on 17 June 2006 for the sum of 71,310.- Kc where it deducted from this sum amount of 10,425.- Kc corresponding to value of returned packing and therefore the [Buyer] was obliged to pay the sum of 60,885.- Kc. The [Buyer] failed to pay the price despite several calls for payment made by the [Seller]. The [Seller] justified the interest rate it claimed by referring to sec. 369 of the Slovak Commercial Code.

The parties to the dispute did not appear before the court at the hearing held on 29 October 2007 despite being dully summoned on 21 August 2007. The[Seller] justified its absence by a motion from 3 October 2007 and agreed with trying the case in its absence. The [Buyer] did not justify its absence at the hearing, did not react to the action and did not ask for adjournment of the hearing. With reference to sec. 101 part 2 of the Slovak Civil Procedure Code (hereinafter referred to as “CPC”), the court tried the case in absence of the parties to the dispute and decided it taking into consideration the documents submitted and the evidence gathered.

The court examined evidence by reading the documents attached to the action, i.e., copies of invoice no. 160608957 from 18 May 2006 for 60.885.- Kc due on 17 June 2006  including bill of lading no. 39069, call for payment of invoice no. 160608957 addressed to the [Buyer] from 17 April 2007, motion of the [Seller] from 3 October 2007, record of the [Seller] from the Companies Register and thereby investigated the following factual circumstances: 

The [Seller] and the [Buyer] concluded, upon the purchase orders made by the [Buyer] and their subsequent acceptances made by the [Seller], contracts of sale under which the [Seller] delivered to the [Buyer] the goods - glass chaton raw materials, glass balls and chaton tips and the  [Buyer] confirmed the handing over the goods by its signature on the bill of lading no. 39069 with specifying the identification number of the [Buyer]’s vehicle BJ 264 AV (the bill of lading contained the INCOTERMS 2000 delivery term Ex Works , i.e., the [Buyer] will transport the goods directly from the premises of the [Seller] and bears the risk of such carriage). The purchase price for the goods delivered, after deducting the value of five returned bags, was claimed by invoice no. 160608957 of 18 May 2006 for 60,885.- Kc due on 17 June 2006 which was, according to the [Seller]’s statement, not paid by the [Buyer] despite several calls for payment.

 
The [Seller] has its registered office in the Czech Republic and the [Buyer], that was conducting business under the trade certificate, had at the time of concluding the contract its place of business in the Slovak Republic and now has its residence in the Slovak Republic. According to the record from the Trade Register of the Slovak Republic, the [Buyer] ceased to conduct business on 31 October 2006 and therefore it is a subject of these proceedings as a natural person, although the dispute concerns its previous business activity. As the case constitutes a relationship with foreign aspect, the court primarily had to resolve issue of jurisdiction of courts of the Slovak Republic and the applicable law.

Under sec. 2 of act no. 97/1963 Coll. on International Private and Procedural Law as amended, the provisions of this act shall be used only if not otherwise stipulated by international convention ratified by the Slovak Republic or by a statute enforcing such international convention.

Since there is no international convention concluded between the Czech Republic and the Slovak Republic governing jurisdiction of their courts, this issue has to be resolved by the abovementioned Act on International Private and Procedural Law as amended (hereinafter referred to as “Act on PIL”), which implemented also the EC Council Regulation no. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.

Under sec. 37 of the Act on PIL, if not otherwise stipulated, the Slovak courts have jurisdiction to try the dispute, if a defendant has its residence or registered office in the Slovak Republic, or when the dispute concerns proprietary rights, if it has propriety in the Slovak Republic.

With reference to the abovementioned section 37 of Act on PIL, the Slovak courts have jurisdiction to try this case.

Under sec. 48 of the Act on PIL, the Slovak courts conduct the proceedings under Slovak procedural rules and all parties to the proceedings have equal position when asserting their rights.

The object of these proceedings is the duty of the [Buyer] to pay the purchase price. Each party to the dispute has its registered office in a different State. Under sec. 756 of the Slovak Commercial Code, the provisions of this Code shall be used only if no international convention ratified by the Slovak Republic and published in the Collection of Acts stipulates otherwise.

Contracts of sale concluded by merchants with their places of business in different States, which are parties to the UN Convention on Contracts for the International Sale of Goods (hereinafter referred to as the “Convention”) published in the Collection of Acts as no. 160/1991 Coll., shall be governed by this Convention.

The [Seller] has its place of business in the Czech Republic and the [Buyer] was undoubtedly aware of this fact, as it was expressly stated in the invoice and on the bill of lading and both of these documents were written in the Czech language. Furthermore, the [Seller] handed over the goods in the premises of the [Seller] situated in the Czech Republic. The [Buyer] had at the time of concluding of the contract its place of business in Slovakia and the [Buyer] still has its residence here. Since both States concerned are the Contracting States of the Convention and there was no exclusion of the Convention by the parties to the dispute, provisions of the Convention are applicable to their mutual relationship.

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 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 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 article 78 of the Convention, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.

Under article 7 of the Convention, questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.

Under sec. 155 part 2 b) CPC, the term of the judgment awarding pecuniary performance may be denominated also in foreign currency where the circumstances permit, provided that one of the parties is an exchange non-resident of the State.

Under sec. 2 of act no. 202/1995 Coll. (the Foreign Exchange Act), an exchange resident of the State is a legal person with its registered office in Slovakia or a natural person with its domicile in Slovakia and also a subsidiary of an exchange resident located abroad. An exchange non-resident of the State is a legal person or a natural person which is not an exchange resident.

With reference to the evidence gathered, the court found that the [Seller] fulfilled its contractual obligation to deliver the goods to the [Buyer]. The delivery of the goods by the [Seller] and the receipt of the goods by the [Buyer] were evidenced by the signature of the [Buyer] on bill of lading no. 36069 with specification of identification number of the vehicle of the [Buyer] - BJ 264 AV. The court found no doubts about the statements of the [Seller] that the [Buyer] failed to fulfil its obligation to pay the purchase price on time and even to the date of the judgment. The [Buyer] did not oppose the [Seller]’s claim during the proceedings and did not dispute the grounds of this claim. The [Buyer] did not answer the action which was duly delivered to it on 21 August 2007, although the court asked the [Buyer] to do so, and [Buyer] did not appear before the court, though [Buyer] was duly summoned and [Buyer] did not ask for adjournment of the proceedings.

With reference to the evidence gathered, taking into consideration the abovementioned provisions of the Convention, the court concluded that the claim asserted by the [Seller] in its action is justified in its entirety. The court therefore pronounced on 29 October 2007 the judgment and thereby bound the [Buyer] to pay to the [Seller] a sum of 60,885.- Kc and, because of the [Buyer]’s default with its payment, also interest of 3.85 % annually from 18 June 2006 until payment. The [Buyer] was obliged under the contract of sale to pay the purchase price to the [Seller] by a bank transfer by 17 June 2006, as was specified in invoice no. 160608957. The [Buyer] failed to duly fulfil this obligation on time and was in default with payment of this sum from the first day after the date of maturity prescribed in the invoice. The [Buyer] is therefore obliged to pay interest on this sum, as is specified in this judgment, since this interest rate does not exceed the statutory interest rate prescribed in sec. 369 of the Slovak Commercial Code.

The court ruled on the reimbursement of the costs of judicial proceedings under sec. 142 part 1 CPC in connection with sec. 151 part 1 CPC and granted a full reimbursement of the costs to the [Seller], since the [Seller] was entirely successful in asserting its claim. The [Seller] was granted the right to reimbursement of court fees for the action in amount of 4,380.- Sk.

Instruction: An appeal against this judgment must be filed via the District Court in Bardejov within fifteen days of its receipt.

District Court in Bardejov, 29 October 2007.

JUDr. Jana Dubivska, Judge