KS ZA - 22Cb/44/2004sk en

Regional Court in Zilina

6 March 2006 [22 Cb/44/2004]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC
[slovenske znenie]

The Regional Court in Zilina, deciding by a single judge, JUDr. Erika Canadyova, in the case of Plaintiff B.C., s.r.o. [Seller], with its registered office in C., B. ___, Czech Republic, versus Defendant P.S. [Buyer], with its residence in N., ___, F. [Slovak Republic] …, regarding payment of 40,160.- Czech koruna [Kc] and appurtenances

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

The [Buyer] is obliged to pay to the [Seller] a sum in amount of 40,160.- Kc with interest of 2 % annually on this sum for the period from 4 July 2000 until payment within three days after the judgment comes into force.

The [Buyer] is obliged to pay to the [Seller] a reimbursement of costs of the proceedings in amount of 2,515.- Slovak koruna [Sk] within three days after the judgment comes into force.

REASONING

The [Seller] claimed in the proceedings by its action of 1 July 2003, delivered to the District court in Zilina on 8 July 2003, its right to payment of the purchase price for delivered goods, as billed by invoice no. 2000027 of 12 June 2000 for the sum of 40,160.- Kc due on 3 July 2000. The [Seller] also claimed its right to payment of interest of 2 % annually on this sum for the period from 4 July 2000 until payment.

The [Seller] evidenced its claim by submitting invoice no. 2000027, customs declaration no. 20162110-18275-6, purchase order no. 002/2000 made by the [Buyer] via telefax on 16 March 2000 and bill of lading no. 200523/H of 12 June 2000.

The [Buyer] argued in the proceedings that the its obligation corresponding to the claim asserted by the [Seller] was assigned to company G. s.r.o., since the [Buyer] sold its enterprise to this company by a contract of sale of enterprise of 28 December 2001. The [Buyer] stated that the obligation was included in this transfer. The [Buyer] did not conntest the fact that it placed purchase order no. 002/2000 on 16 March 2000 and that the [Seller] handed over the goods, as evidenced by bill of lading no. 200523/H of 12 June 2005. The [Buyer] did not present any evidence proving that the invoice was incorrect or unjustified.

The District Court in Zilina sent the case on 18 August 2004 to this court, as it has territorial and subject-matter competence to try the case. The Court gathered evidence by interrogation of the parties to the proceedings and reading of documents and thereby determined the following factual situation.

With reference to the evidence gathered, the court found to be proved that the [Buyer] acting as a natural person – entrepreneur sent in an informal way purchase order no. 002/2000 on 16 March 2000 to the [Seller] for goods including 4 lift adapters VTA 971/V2. The [Buyer] did not challenge the delivery and did not oppose to the fact that [Seller] handed over the goods. The [Buyer] also did not oppose the invoice no. 2000027 of 12 June 2000 for the sum of 40,160. – Kc due on 3 July 2000. The parties to the proceedings did not oppose the fact that the invoice was served to the [Buyer] and the [Buyer] confirmed receipt of the invoice by its signature on the invoice. The Court determined from the customs declaration no. 20162110-18275-6 that the goods were transported from the Czech Republic to the Slovak Republic.

The court investigated from the submitted documents that the [Buyer] acting as a seller concluded a contract of sale of enterprise on 28 December 2001 with company G. s.r.o. as a buyer and thereby transferred its enterprise including all claims and obligations emerging from it. The contract included attachment which specified obligations of the [Buyer] in year 2000 and the Court investigated that this list of obligations contains also the obligation corresponding to the claim asserted by the [Seller] amounting to 40,160.- Kc.

The Court thereby investigated that the parties to the contract concluded in year 2000 a contract of sale in an informal way. The Court determined that, from the contract for the sale of goods of 2000, the [Seller] was entitled to payment of the purchase price, as it was billed by invoice no. 2000027 of 12 June 2000 for the sum of 40,160.- Kc with respect to application of articles 23 and 53 of the UN Convention on Contracts for the International Sale of Goods published as Notice of  Federal Ministry of Foreign Affairs no. 160/1991 Coll. Since the [Buyer] proved in the proceedings that it concluded a contract of sale of enterprise on 28 December 2001 and thereby transferred to company G s.r.o. all its obligations including the obligation to pay the purchase price from invoice no. 2000027 of 12 June 2000.

Under sec. 477 part 1 of the Slovak Commercial Code, all claims and obligations which are subject to the sale are transferred to the buyer. Under sec. 477 part 3 of the Slovak Commercial Code, such transfer does not have to be affirmed by the creditor, but the seller guarantees payment of these debts by the buyer.

With reference to sec. 477 part 3 of the Slovak Commercial Code (applicable to this situation since both parties to the contract of sale of enterprise were Slovak businessmen), the court determined that by concluding the contract of sale of enterprise the [Buyer] ceased to act as a buyer in the sales relationship with the [Seller]. The [Buyer] nevertheless acts as a guarantor for payment of the transferred obligations (sec. 477 part 3 of the Slovak Commercial Code) by company G. s.r.o. until its actual payment. The court therefore bound the [Buyer] to pay the principal of 40,160.- Kc and interest of 2% annually on this sum for the period from 4 July 2000 until payment. With respect to the interest, the court granted it under sec. 735 of the Czech Commercial Code, as this amount corresponded to the interest rate usual in the seat of the [Buyer] at the time of the default (sec. 121 of Slovak Civil Procedure Code – hereinafter referred to as “CPC”). The court granted the right to interest for the period from 4 July 2000, since the [Buyer] was in default with payment of the price from this day, as it was obliged to pay the invoice with due date on 3 July 2000. The court applied sec. 735 of the Czech Commercial Code with respect to the interest, since the Convention does not contain any precise regulation of interest rate. The court applied the Czech substantive law, as it was applicable under sec. 10 part 2 a) of act no. 97/1963 Coll. on international private and procedural law as in force at the time of concluding of the contract (2000). The court therefore upheld the action and decided as prescribed in the judgment

As the [Seller] was successful in asserting its claim, with reference to sec. 142 part 1 CPC, it is entitled to reimbursement of costs of the proceedings consisting of the paid court fee amounting to 2,515.- Sk.

Instruction: An appeal against this judgment is not admissible.

Regional Court in Zilina, 6 March 2006

JUDr. Erika Canadyova
Judge