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District Court Komarno
12 March 2009 [5 Cb/254/2008]
JUDGMENT IN THE NAME OF THE SLOVAK REPUBLIC
The District Court of Komarno, deciding by a single judge, Mgr. Peter Mezoszallasi, in the case of Plaintiff A.K.K.F.T. [Seller], with its registered office in B.J. – H., ___, Republic of Hungary, …, represented by JUDr. A.K., attorney, versus Defendant B. S., s.r.o. [Buyer], with its registered office in V. O. ___, [Slovak Republic], regarding payment of 27,040.- Euro [EUR] with 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 of 27,040.- EUR with interest of 8.06 % on the sum of 13,312.- EUR for the period from 2 October 2007 until payment and on the sum of 13,728.- EUR for the period from 17 November 2007 until payment, all within three days after the judgment comes into force.
The court s t a y s the proceedings with respect to residual part of the action.
The [Buyer] is obliged to pay to the [Seller] the reimbursement of costs of the proceedings amounting to 3,754.80 EUR, all within three days after the judgment comes into force.
REASONING
The [Seller] claimed in the proceedings by its action of 7 April 2008 its right to payment by the [Buyer] of the sum of 27,040.- EUR with interest of 14.5 % annually on the sum of 13,312.- EUR for the period from 17 November 2007 until payment, on the sum of 13,728.- EUR for the period from 2 October 2007 until payment, all within 15 days after the order to pay comes into force and for the [Buyer] to reimburse the costs of the proceedings.
The [Seller] justified its claim by stating that upon purchase order from the [Buyer], under the Contract of Sale no. 2892007, it delivered the goods – frozen peas. The goods were delivered to the [Buyer] in separate deliveries, as evidenced by bills of lading, in the amounts of 20,480 kg and of 21,120 kg. The [Seller] subsequently claimed its right to payment of the purchase price for the goods delivered by drawing invoices for the sum of 13,312.- EUR due on 1 October 2007 and sum of 13,728.- EUR due on 16 November 2007. The [Buyer] failed to pay the purchase price duly and on time.
The Court issued an Order to pay [Rec. no. 4Rob/190/2008] on 4 August 2008 and the [Buyer] filed A protest against this Order within the statutory period. The [Buyer] alleged that the [Seller] shipped defective goods on 2 October 2007 and the [Buyer] notified the [Seller] lack of the lack of conformity immediately after the delivery on 5 October 2007, whereupon the [Seller] accepted this notice and promised to make a delivery of equivalent goods in conformity with contract, but such delivery was never performed by the [Seller]. The [Buyer] promised to return the defective goods to the [Seller] as soon as it receives a new delivery of conforming goods, but has not returned the goods so far, as the [Seller] did not yet perform the substitute delivery yet.
With respect to the noticed lack of conformity, the [Buyer] explained that under the contract the [Seller] undertook to deliver frozen fresh peas produced in 2007, but delivered to the [Buyer] rehydrated dry peas from unknown location. The goods delivered were not in conformity with the contractual specification – the fineness of the peas was to be maximally 180 dentederometres, while the actual rate was between 200 to 220 dentederometres. The [Buyer] concluded its answer by stating that it is planning to claim damages from the [Seller] for such breach of a contract.
The [Buyer] did not enclose any evidence to support its protest.
The [Seller] responded via its attorney by the motion of 10 November 2008 and stated that under the contract of 28 September 2007 the [Seller] was obliged to deliver frozen green pea in the amount of 105.6 tons of quality as specified in sections 1 and 2 of the contract in conformity with regulations of the Republic of Hungary. The parties to the proceedings agreed that deliveries will be performed upon approval of the specification of the goods and receiving a photograph and a sample of the goods to be delivered. This condition was fulfilled by the [Seller], as otherwise the [Buyer] would not have accepted the goods. This specification of goods was also enclosed with the contract. The [Seller] made four separate deliveries to the [Buyer]. In the case of two deliveries, the [Buyer] duly paid the price billed by invoice no. 240/2007 of 16 October 2007 and by invoice no. 250/2007 of 12 October 2007. For the two remaining deliveries, which are subject to these proceedings, the [Buyer] did not pay the purchase price. With respect to the lack of conformity, the [Seller] stated that the [Buyer] did not notify of a lack of conformity and provided no evidence of defect or of such notice. The [Seller] therefore asked the Court to uphold its claim in the entirety.
The Court ordered a public hearing on 3 February, summoned the parties to the proceedings and bound the [Buyer] to provide, within 15 days after receipt of the summons, evidence of notifying of the lack of conformity of the goods. The summons was returned to the court on 11 February 2009 as undeliverable, though it was sent to the address of the registered office of the [Buyer], as stated in the Companies Register. The Court therefore ordered a new public hearing on 12 March 2009, but this summons was also returned to the Court as undeliverable on 3 March 2009.
The [Seller] pointed out at the hearing that the [Buyer] provided no evidence to support its counterclaim and therefore asked the court to uphold the [Seller]’s action in its entirety.
The [Seller] withdrew its action with respect to part of the appurtenances exceeding interest of 8.6 % annually ([Seller] had initially claimed 14.75 % annually). The [Buyer] did not appear before the court, though being duly summoned in accordance with sec. 48 part 2 of the Slovak Civil Procedure Code (hereinafter referred to as “CPC”) on 7 March 2009. The Court therefore tried the case in absence of the [Buyer] in accordance with sec. 101 part 2 CPC.
The Court gathered evidence by interrogation of the attorney of the [Seller], reading of the contract, specification of the goods, invoices, CMR, call for payment, protest, power of attorney, and the record of the Companies Register regarding the [Buyer].
The Court thereby determined the following factual and legal situation:
On 28 September 2007, the parties to the proceedings concluded contract of sale no. AL-002-ALC01 pursuant to which the [Seller] delivered to the [Buyer] the goods, frozen green peas. The delivery of the goods was evidenced by bills of lading no. NB2378845 of 1 October 2007 and no. NB237867 of 17 October 2007. The [Seller] delivered to the [Buyer] the goods – frozen green peas in the amount of 20840 kg and 21120 kg, and the deliveries were accepted by the [Buyer] when the [Seller] handed over the goods.
The [Seller] asserted its right to payment of the purchase price reflected in invoice no. 238/2007 of 1 October 2007 for the sum of 13,312.- EUR and invoice no. 282/2007 of 16 November 2007 for the sum of 13,728.- EUR. The [Buyer] did not pay these invoices.
Under article 1(1) of the UN Convention on Contracts for the International Sale of Goods (hereinafter referred to as the “Convention”), published in Collection of Acts as number 160/1991 Coll., which was ratified with reservation from article 1(1)(b) of the Convention, this Convention applies to contracts of sale of goods between parties whose places of business are in different States when the States are Contracting States.
Under article 39(1) of the Convention, the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. Under section 39(2), in any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee.
Under article 62 of the Convention, the seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.
Under article 66 of the Convention, loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller.
If there is an impediment to performance, under article 79(4) of the Convention, the party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt.
With reference to the evidence gathered, the Court determined that the claim of the [Seller] is justified. At first, the Court stresses, that the contract of sale was validly concluded between the parties to the proceedings and the [Seller] was obliged under this contract to deliver goods to the [Buyer] of the quality specified in the contract. The [Seller] fulfilled this obligation duly and on time and evidenced this fact to a sufficient extent. The [Buyer] approved the handing over of the goods by signing the bills of lading and did not oppose this fact also in its protest. The [Seller] subsequently asserted its right to payment of the purchase price by drawing the invoices which were not paid by the [Seller]. The Court therefore determined that the [Seller] successfully sustained the burden of proof with respect to its claim for payment of the purchase price for delivered goods.
On the contrary, the [Buyer] did not fulfil its obligation imposed under sec. 120 part 4 CPC. The [Buyer] argued in its protest that it notified the [Seller] of a lack of conformity of the goods but did not provide any evidence thereof, despite being called for by the Court. With reference to sec. 120 part 1 CPC, parties to the proceedings must provide evidence to support their arguments. The Court shall then decide about which of the evidence provided by the parties will be actually examined. The Court can exceptionally examine also evidence which was not provided by the parties to the proceedings, if it is necessary for ruling on the merits of the case.
With reference to the abovementioned, the [Buyer] did not provide evidence for its argument about notifying of the lack of conformity of the goods. The [Buyer] was summoned to the hearing but did not appear before the Court and was also called for presentation of evidence by an express call. Since the [Buyer] did not fulfil this obligation, the Court did not take into account the argument of the [Buyer] about its claim arising from lack of conformity of the goods.
A verdict to stay the proceedings to permit a partial withdrawal of the action with respect to the claim for interest is justified under sec. 96 part 1 CPC.
The Court ruled on the reimbursement of the costs of the proceedings with reference to sec. 142 part 1 CPC and granted to the [Seller] full reimbursement of its costs, as it was successful in asserting its claim in its entirety.
Mgr. Peter Mezoszallasi, Judge |
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