Spain 3 November 1997 Appellate Court Barcelona (Rolled steel case)
[Cite as: http://cisgw3.law.pace.edu/cases/971103s4.html]
DATE OF DECISIONS:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 729/96-B
CASE NAME:
CASE HISTORY: 1st instance Juzgado de Primera Instancia de Sant Felin de Llobregat (8/95) 12 January 1996 [partly affirmed]
SELLER'S COUNTRY: Germany [plaintiff]
BUYER'S COUNTRY: Spain [defendant]
GOODS INVOLVED: Rolled steel
SPAIN: Audiencia Provincial de Barcelona, sección 16, 3 November 1997
Case law on UNCITRAL text (CLOUT) abstract no. 246
Reproduced with permission from UNCITRAL
A Spanish buyer ordered from a German seller a set of parts for use in the buyer’s production process, it
being agreed that the goods would be delivered by instalments. The seller consistently failed to meet the delivery
deadlines so that three of the instalments were delivered after the agreed dates, with delays of between four and
eight weeks and inevitable disruption of the buyer’s production process. In view of the situation, the buyer
declared the contract avoided in respect of the outstanding future instalments within a period of 48 hours after
delivery of the third overdue instalment.
The Court held that the buyer’s tolerance of the late delivery of the three initial instalments was equivalent
to the granting of an “additional period of time” to the seller, in accordance with article 47 CISG. However, the
delay incurred and its effects on the buyer’s production process were deemed by the Court to amount to a
“fundamental breach”, in conformity with articles 33 and 49. The Court ruled that, in accordance with
articles 49(2) and 73, such fundamental breach entitled the buyer to avoid the contract and prevent the handing
over of future outstanding instalments. The 48-hour period within which the buyer cancelled following delivery
of the last late instalment received was deemed to be a “reasonable time” within which to declare the contract avoided.
APPLICATION OF CISG: Yes APPLICABLE CISG PROVISIONS AND ISSUES Key CISG provisions at issue: Classification of issues using UNCITRAL classification code numbers:
25B [Definition of fundamental breach: substantial deprivation of expectations, etc.]
33A [Time for delivery: on date fixed by or determinable by contract];
47A [Buyer's right to fix additional period for performance];
49A1 ; 49A21 [Grounds for avoidance: fundamental breach of contract; Seller does not deliver within additional period set under art. 47];
73B12 [Fundamental breach with respect to future installments]
Descriptors: Unavailable
CITATIONS TO OTHER ABSTRACTS OF DECISION English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=313&step=Abstract>
Spanish: CISG-Spain and Latin America database at http://www.uc3m.es/cisg/respan3.htm CITATIONS TO TEXT OF DECISION Original language (Spanish): CISG-Spain and Latin America database at http://www.uc3m.es/cisg/sespan3.htm ; Revista Jurídica de Catalunya, Jurisprudencia (1998, II) 411-412; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=313&step=FullText> Translation: Unavailable CITATIONS TO COMMENTS ON DECISION English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.547, 549, 656, 721 French: Rosch, Receuil Dalloz (1999) 363Case abstract
Classification of issues present
Editorial remarks
Citations to other abstracts, case texts and commentaries
Pace Law School
Institute of International Commercial Law - Last updated September 17, 2004