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CISG CASE PRESENTATION

Argentina 20 May 1991 National Commercial Court of First Instance (Elastar Sacifia v. Bettcher Industries) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/910520a1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19910520 (20 May 1991)

JURISDICTION: Argentina

TRIBUNAL: Juzgado Nacional de Primera Instancia en lo Comercial No. 7 (Buenos Aires)

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 50.272

CASE NAME: Elastar Sacifia v. Bettcher Industries Inc.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: United States (plaintiff)

BUYER'S COUNTRY: Argentina (defendant)

GOODS INVOLVED: Unavailable

Case abstract

ARGENTINA: Juzgado Nacional de Primera Instancia 20 May 1991

Case law on UNCITRAL texts (CLOUT) abstract no. 21

Reproduced with permission from UNCITRAL

A contract for the international sale of goods between a seller of the state of Ohio, United States of America, and an Argentine buyer was considered to be goverened by CISG because both States had acceded to CISG, the sales contract had been concluded after CISG had entered into force (Article 1(1)(a) CISG) and, according to the commercial invoice, the seller had its place of business in the state of Ohio. Questions not settled in the Convention are subject to the law of the seller, since in principle the sale is governed by the law of the domicile of the seller who is responsible for the performance characteristic of the contract, in accordance with the rules of international private law (Article 7(2) CISG).

The seller has a right to interest on the price because this was expressly agreed and notwithstanding the fact that CISG contains no express privision recognizing payment of interest. It was considered that payment of interest was a widely known usage in international trade (Article 9(2) CISG).

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7(2) ; 9(2) ; 78 [Also cited: Articles 53 ; 54 ; 55 ; 56 ; 57 ; 58 ; 59 ; 60 ]

Classification of issues using UNCITRAL classification code numbers:

7C23 [Gap-filling by domestic law];

9A [International usages: contracts or contract formation];

78A [Interest on delay in receiving price or any other sum in arrears]

Descriptors: Usages and practices ; Interest

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database, 1994

Italian: Diritto del Commercio Internazionale (1993) 653 No. 11

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 238

CITATIONS TO TEXT OF DECISION

Original language (Spanish): Maurecio Bueno Barrera, Cuatro casos relacionados con la Convención de Viena sobre Compraventas Internacionales de 1980, Thesis, Universidad Panamericana (Mexico, D.F. 1996) 271-278; Unilex database, 1994

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English (Commentaries on interest, citing this case and other cases): Lookofsky, Understanding the CISG in the USA [CISG/USA] (1995) 11 n.5, 96 n.237; Lookofsky, CISG/Scandinavia (1996) 115 n.267; Bernstein/Lookofsky, CISG/Europe (1997) 123 n.272; Ferrari, Internaitonal Legal Forum (4/1998) 138-255 [251 n.1062]; Ferrari, 15 Journal of Law and Commerce (1995) 122-125; Koneru, 6 Minnesota Journal of Global Trade (1997) 123-138; Kizer, 65 University of Chicago Law Review (1998) 1279-1306; Thiele, 2 Vindobono Journal (1998) 3-35 [n.78, n.129]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) §: 6-31 n.361; Liu Chengwei, Recovery of interest (November 2003) nn.126, 127; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.848 (payment of interest recognized as application of trade usage); Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 9 para. 26

French: Garro, in: Emptio-Venditio Internationales, Neumayer ed. (Basel 1997) 218 n. 12; Zuppi, in: Sebastien Bettschart ed., Les ventes internationales (CDICAC 1998) Vol. 36, 23 [32-33]

German: Piltz, Neue Juristische Wochenschrift 1994, 1101 [1103 n.20, 1104 n.47]; Schlechtriem, Internationales UN-Kaufrecht (1996) 39 n.91, 180 n.303

Spanish: Bueno, Cuatro casos relacionados con la Convención de Viena sobre Compraventas Internacionales de 1980, Thesis, Universidad Panamericana (Mexico, D.F., 1996) 175-188; Piltz, La Ley (Buenos Aires 5 September 1994) 1-4

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Juzgado National de Primera Instancia 20 May 1991
Elastar S.A.C.I.F.I.A. v. Bettcher Industries

Translation by Alejandra Truscello [*]

[Translator's note: Elastar S.A.C.I.F.I.A. of Argentina [buyer] is a firm undergoing bankruptcy proceedings. Bettcher Industries of the United States [seller] is a creditor.]

[…]

All evidence heard and statements entered to resolve the claim presented by [seller] (order no. 12, court file no. 50.272) in regard of the credit informed by the Trustee in Bankruptcy on p. 840/41.

1) [Seller] filed a claim for the sum of US $3,249.55 (p. 10/11). The Trustee recommended a credit only for the sum of US $3,065.61 as he dismissed the US $183.94 interest portion of [seller's] claim (p. 840/41). The [seller's] challenge refers exclusively to the sum of US $183.94.

2) The source of the obligation for which [seller] has claimed a credit is an international sale of goods, which is ruled by the United Nations Convention on Contracts for the International Sale of Goods, subscribed in Vienna on 11 April 1980. The Convention was ratified by Argentina by Law No. 22.765, instrument of ratification deposited on 19 July 1983. It came into effect on 1 January 1988, according to article 99 of the Convention (see Revista de la Asociación de Magistrados y Funcionarios de la Justicia Nacional, Year 1, No. 1, September 1988, pages 77/94, especially p. 81). The 1980 Convention is applicable to this sale as according to the commercial invoice, copy exhibited on page 43, which was issued on 23 January 1989, the [seller] has its place of business in Ohio, United States of America and the [buyer] in the province of Buenos Aires, Argentina (art. 1(1)(a) of the Convention.

3) The existence of an international treaty, which exhaustively regulates in 101 articles contract formation and the rights and obligations of the contracting parties, makes the Argentine Commercial Code inapplicable. For this reason, the Court cannot take into account the allegation that the Trustee has made for the application of the articles 464 and 474 of the Argentine Commercial Code. In the ultimate case, matters which cannot be solved by the Convention, should be submitted to the law of the State of Ohio, as the sale falls in principle under the scope of the law of the seller's domicile, which has the closest connection to the contract, pursuant to the rules of private international law of the forum (art. 7(2) of the 1980 Vienna Convention, arts. 1209, 1210 and 1212 of the Argentine Civil Code; Boggiano, Antonio "Derecho Internacional Privado" 2nd ed., Buenos Aires, Depalma, 1983, volume II, p. 781/85, 785 in particular).

4) Articles 53, 54, 57 and 58 of the 1980 Vienna Convention refer to the buyer's obligation to pay the price as well as the place and time of payment. However, there is no express norm of the Convention which can indicate the source or origin of [the amount of] of interest when payment was agreed to at a fixed period of time. Payment of interest on such transactions is a widely spread and accepted practice in international commerce (art. [9(2)] 1980 Vienna Convention).

5) There are basically three types of international sale payment: documentary credit, documentary collection and/or bank transfer (Boggiano op. cit., volume II, p. 811). In this case, the adopted type was a documentary collection by Banco Quilmes, which was issued by a 180 days draft of exchange. This is clearly shown in the commercial invoice from p. 43 of the court file. However, the translation on p. 44 states by mistake "cheque a 180 días del Banco de Quilmes", "180 days check: Banco de Quilmes", whereas the English text of for the document indicates "180 days draft: Banco de Quilmes ...", that is to say, "180 days draft of exchange: Banco de Quilmes"; "check" means cheque (see Meilij de Romero, Gabriela "Vocabulario legal y empresario", Buenos Aires Depalma, 1987, p. 74 and 93). The information provided in the commercial invoice is corroborated with the draft of exchange (copy on p. 46). In documentary collections, banks do not underwrite any payment obligations; instead, they act as a post office to the seller, handing over the documents that will allow the buyer to withdraw the goods (commercial invoice and bill of lading in this case), against the acceptance of the bills of lading drawn by the exporter, according to the time periods used in international trade, especially for manufactured goods or against bills of exchange payments.

6) As an established commercial practice, interest is not included in the commercial invoice, but it is instrumented separately either in a note of credit, or in another bill of exchange, or directly with a bill of exchange issued separately as the one used to draw operating capital. The procedure described takes place not only with a documentary collection, but also when a documentary credit is opened. Commercial invoices used in international sales of goods never include interest. The Trustee recommended dismissal of the [seller's] claim for the sum corresponding to interest. The Trustee recommended that the interest claim be dismissed as it is recorded in a separate document. This position of the Trustee is surprising [and incorrect] as international commercial practice accepts interest recorded in a separate document.

7) Usages of international commerce have long been accepted in the commercial jurisprudence -- as an example, by the FOB, C&F, CIF clauses regulated by the International Chamber of Commerce Incoterms. Usages of international commerce are presently accepted as a source of law applicable to international sales, even over the 1980 Vienna Convention, as the rule of the Convention mandates in its art. 9(2).

8) On the other hand, the invoice corresponding to the price of the sale (p. 43) and that corresponding to the interest (p. 48), have both been issued on the same date, 23 January 1989, as is argued in the incidental proceeding (p. 1). Such amounts of interest are instrumented in the bill of exchange whose copy is shown on p. 51. Both bills of exchange were drawn on the same date, 9 February 1989 and, according to the copies at hand, they were accepted by the [buyer], even though the Trustee expresses that they have not (p. 841 item b.). On the contrary, the Court cannot see how the [buyer] could have withdrawn the sold goods - 300 gloves - on arrival in Buenos Aires, without acceptance of the bills of exchange by the [buyer].

9) Consequently, the interest claim filed by the [seller] is duly justified for it corresponds to declare the credit admissible for the sum of US $283.93 corresponding to 180 days interest since 9 February 1989. The sum of US $3,065.61 will be verified, as no challenge has been claimed in this respect. Both sums are considered unsecured credits.

10) Due to these considerations,

DECIDED: Admit the amount claimed and verify in favor of [seller] a credit for the sum of US $3,065.61 as an unsecured credit and declare admissible a credit for the sum of US $183.94 with the same character and in favor of the [seller]. To be added to the principal claim.

FOOTNOTE

* Alejandra Truscello is the Chair of the Conference Committee of the Alumni Association of the Willem C. Vis International Commercial Arbitration Moot (MAA). She practices law as an attorney in Buenos Aires, Argentina <atruscello@maa.net>.

All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated August 5, 2005
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