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OS DK - 9Cb/211/2007
CISG
SLOVAKIA

OS DK - 9Cb/211/2007en

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC

[slovenske znenie]

 

The District Court in Dolny Kubin, deciding by a single judge, Mgr. Iveta Bebejova, in the case of Plaintiff F. K. [Seller], with its residence in S.l,, Republic of Poland, versus Defendant C., s.r.o. [Buyer], with its registered office in D.K. [Slovak Republic], ___, regarding payment of 16,587.60 Polish zloty [PLN] and appurtenances

 

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

 

[Buyer] is obliged to pay [Seller] 16,587.60 PLN and interest of 11.5 % annually:

 

-         On the sum of 63.44 PLN for the period of 15 April 2006 until payment;

-         On the sum of 108.48 PLN for the period of 30 April 2006 until payment;

-         On the sum of 235.65 PLN for the period of 14 August 2006 until payment;

-         On the sum of 16,024.28 PLN for the period of 24 September 2006 until payment;

-         On the sum of 155.75 PLN for the period of 24 November 2006 until payment;

all within three days after the judgment comes into force.

 

[Buyer] is obliged to pay [Seller] the reimbursement of costs of the proceedings in the sum of 1,658.65 Eur within three days after the judgment comes into force.

 

REASONING

 

[Seller] claimed, by its action filed with the court on 12 July 2007, its right to payment of 16,587.60 PLN with interest of 11.5 % annually on the sum of 63.44 PLN for the period of 15 April 2006 until payment, on the sum of 108.48 PLN for the period of 30 April 2006 until payment, on the sum of 235.65 PLN for the period of 14 August 2006 until payment, on the sum of 16,024.28 PLN for the period of 24 September 2006 until payment, on the sum of 155.75 PLN for the period of 24 November 2006 until payment and right to reimbursement of costs of the proceedings.

 

[Seller] justified its claim by stating that it delivered goods (meat products) to [Buyer] and drew invoices for the goods delivered, i.e. invoice no. 23309/06 for the sum of 3,308.88 PLN due on 14 April 2006 which was partially paid by [Buyer] on 26 April 2006 in the amount of 3,245.44 PLN where the outstanding debt remained 63.44 PLN, the invoice no. 26416/06 for the sum of 1,565.99 PLN due on 29 April 2006 which was partially paid by [Buyer] on 3 May 2006 in the amount of 1,457.51 PLN where the outstanding debt remained 108.48 PLN, the invoice no. 54325/06 for the sum of 6,639.67 PLN due on 13 August 2006 which was partially paid by [Buyer] on 16 August 2006 in the amount of 6,404.02 PLN where the outstanding debt remained 235.65 PLN, the invoice no. 65724/06 for the sum of 16,082.20 PLN due on 23 September 2006 with respect to which [Seller] drew credit no. 5103/06 ZWR of 25 September 2006 for the sum of 57.92 PLN where the outstanding debt remained 16,024.28 PLN, the invoice no. 82598/06 for the sum of 5 939, 05 PLN, due on 23 November 2006 which was partially paid by [Buyer] on 23 November 2006 in the amount of 5,783.30 PLN where the outstanding debt remained 155,75 PLN. [Buyer]’s entire debt amounts to 16,587.60 PLN. [Seller] initially urged [Buyer], through its former legal representative, to pay the debt by the letter of 17 January 2007. [Buyer] did not pay the sum but responded with its letter of 6 February 2007 where it stated that the first three invoices were paid by a bank transfer, which is contrary to the accounting books submitted by [Seller], since [Buyer] paid by a bank transfer the invoice no. 23309/06 only partially and the other invoices were paid in cash, but also only partially. The invoice no. 65724/06 was not paid at all. [Buyer] also stated that it does not keep in its accountings the invoices no. 65724/06 and no. 82598/06, but the invoice no. 65724/06 bear the signature and the office seal of [Seller] and the invoice no. 82598/06 was partially paid by [Seller]. [Buyer] was urged to pay its debt also by a call from 21 May 2007 but it was not received by [Buyer]. With reference to sec. 10 part 2 a) of the act no. 97/1963 Coll. on international private and procedural law as amended, this contractual relationship is governed by the substantive law of Poland and [Seller] therefore claimed default interest under sec. 1 of the Resolution of board of ministers no. Dz.U.2005.201.1662 of 13 October 2005 on statutory default interest, which prescribes the rate of 11.5 % annually.

 

[Seller] confirmed handing over the goods by issuing separate documents. [Seller] invoiced the purchase price for the goods delivered with reference to particular bills of lading. [Buyer] partially paid some of the invoices; other invoices were not paid at all. [Seller] proved its statements by submitting the invoices and the confirmations of delivery. [Buyer] argued that it has a claim against [Seller] amounting to 317,185.- Sk which is eligible for set-off and presents evidence of an unpaid purchase price for goods delivered by [Buyer] to [Seller]. [Buyer] also argued that there are certain discrepancies in [Seller]’s enumeration of the deliveries performed. [Buyer] stated that it can prove its statements by providing its accounting books and proposed interrogation of a witness, a former executive of [Buyer].

 

After the initial hearing held on 25 March 2008 (rec. no. 70), the court held another hearing (rec. no. 71) in [Buyer]’s absence and its legal counsel, as they failed to appear before the court, though being duly summoned (sec. 48 part 2 of the Slovak Civil Procedure Code – hereinafter referred to as “CPC”). Although [Buyer]’s legal counsel offered justifications for its absence, he did not ask for adjournment of the hearing. Despite [Buyer]’s proposal for evidence made at the hearing on 25 March 2008, [Buyer] did not present any documents, although the court asked [Buyer] to do so at the same hearing (rec. no. 73). [Buyer] failed to fulfill this obligation despite the penalty imposed by the court (rec. no. 87). The hearings ordered on 29 April 2008 and 27 May 2008 were adjourned because of excuses made by [Buyer], which tended to be obstructive (rec. no. 93, 104). The conflict with other hearings in case of [Buyer]’s legal counsel was not a justified reason for adjournment, since [Buyer] agreed that its attorney can arrange for an attendance of a substitute attorney (rec. no. 64). [Buyer] therefore had no obstacles to appear at the hearings held on 29 April 2008 and 17 June 2008 and to submit its accounts in order to evidence its arguments against [Seller]’s claim. [Buyer] provided no evidence about the discrepancies in the claimed course of delivery of the goods and did not duly claim setting off of its claim against [Seller] (sec. 98 CPC).

 

With reference to the evidence gathered, the court found the [Seller]’s claim to be justified. The parties concluded a contract of sale upon oral purchase orders presented by [Buyer] to [Seller]. Such a relationship shall be governed by the provisions of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (hereinafter referred to as the “Vienna Convention”), which was published in the Collection of Acts as no. 160/1991 Coll. Under sec. 10 part 1, 2 a) of act no. 97/1963 Coll. shall the relationship (with regards to its character and location of the parties to the dispute) be governed by the Polish law. Under art. 91 part 2 of the Constitution of the Republic of Poland, international treaties ratified by the Poland shall be applied prior to the domestic law. Poland ratified the Vienna Convention on 13 March 1995, which was published in its collection of acts (Dziennik Ustaw) as no. 286/1996. Under art. 58(1) of the Vienna Convention, the buyer must pay the price when the seller places either the goods or documents controlling their disposition at the buyer's disposal. Therefore [Buyer] was in default with payment of the price on the first day after delivery of the goods. Under art. 78 of the Vienna 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.

 

The interest rate is not prescribed in the Vienna Convention. The court therefore applied relevant provisions of the Polish law. Under art. 481 of the Polish Civil Code, the maximum interest rate is prescribed by a special regulation. Under regulation of the Council of Ministers no. 1662/2005, the interest rate in force from 15 October 2005 is 11.5 % annually and is in force until present days.


[Seller] proved the delivery of the goods to [Buyer], while [Buyer] neither proved, nor even specified its argument about the existence of its claim eligible for set-off (legal grounds, amount, due date) and the argument about discrepancies in delivery. [Seller] proved, by the invoices and the certificates of delivery, that it delivered the goods to [Buyer] in the amount specified in the action. Furthermore, several invoices were partially paid by [Buyer]. With reference to the abovementioned facts, the court upheld [Seller]’s action in its entirety. The court dismissed the action with regards to part of the claimed interest, since [Seller] claimed the right to interest from the due date of each invoice (including this day), while the right to interest commences from the first day after the due date (art. 58(1) of the Vienna Convention).


The court ruled on the reimbursement of the costs of judicial proceedings under sec. 142 part 3 and granted a full reimbursement of the costs to [Seller] in the amount of 28,794.- Sk, since it was not successful with its entire action, only a marginal part of it. [Seller] was granted the right for reimbursement of court fee for the action, since it did not claim reimbursement for any other costs.

 

Instruction: An appeal against this judgment must be filed via the District Court in Dolny Kubin within fifteen days of its receipt (sec. 204 part 1 CPC).


District Court in Dolny Kubin, 17 June 2008.

JUDr. Peter Bebej, Judge

left pannel book