CISG CASE PRESENTATION

Switzerland 20 December 1994 Appellate Court Valais (Stone blocks case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/941220s1.html]

Primary source(s) for case presentation: Case text

Case Table of Contents

• Case identification
• UNCITRAL abstract
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)
• Guide to links contained in case presentations

Case abstract

Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 58 ; 59 ; 78 [Also cited: Articles 7(2) ; 100 ]

Classification of issues using UNCITRAL classification code numbers:

58A [Time for payment: buyer to pay when goods placed at buyer's disposition];

59B [Payment due at time fixed or determinable by contract or Convention: no need for request by seller or other formality]

78A ; 78B [Interest on delay in receiving price or any other sum in arrears: accrual of interest; Rate of interest]

Descriptors: Price ; Interest

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English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=168&step=Abstract>

German: Revue valaissanne de jurisprudence / Zeitschrift für Walliser Rechtsprechung (Sion) 1995, 164

Italian: Diritto del Commercio Internazionale (1997) 729-730 No. 140

CITATIONS TO TEXT OF DECISION

Original language (French): Revue valaissanne de jurisprudence / Zeitschrift für Walliser Rechtsprechung (Sion) 1995, 164-167; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=168&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 364 [Art. 58]; Ferrari, International Legal Forum (4/1998) 138-255 [253 n.1080 (interest issues)]; Behr, 17 Journal of Law and Commerce (1998) 266-288 [abstracts and comments on 29 interest rulings from 10 countries (this case presented at 282)]; Thiele, 2 Vindobono Journal (1998) 3-35, citing this case [n.61] and 42 other interest rulings; Liu Chengwei, Recovery of interest (November 2003) nn.119, 150, 172, 269

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

1. [Jurisdictional issues]

a) Art. 1 of the Federal Law on Private International Law of 18 December 1987 (hereinafter referred to as LPIL) provides for the application of international treaties in the field of international jurisdiction, in particular, the Lugano Convention of 16 September 1988 [*] (in citations, hereinafter referred to as LC), concerning jurisdiction and the enforcement of judgments in civil and commercial matters, entered into force on 1 December 1992 between Switzerland and Italy (art. 61 para. 3 LC; Schwander, Zeitlichgestaffelte Anwendbarkeit des Lugano-Übereinkommens, in AJP [*] 1992, pp. 1145 et seq.).

The Lugano Convention is applicable in the present case as the events of the present case took place after 16 September 1988 and the parties to the case are [seller] a creditor domiciled in Italy and [buyer] a debtor domiciled in Switzerland (art. 54 para. 1 LC; ATF II 393 and cited references). The Lugano Convention applies in civil and commercial matters, regardless of the nature of the court, to persons domiciled in a Contracting State independently of their nationality (arts. 1 and 2 LC). A legal entity with its place of residence in a Contracting State may be sued in the courts of that Contracting State (art. 2 para. 1 LC; Message, FF 1990 II p. 284, n. 211.1). In the present case, the place of business of the [buyer] is in Switzerland, more precisely in Sion. Therefore, the Canton Appellate Court has the ratione loce jurisdiction to hear the present case.

b) The [buyer] did not submit an answer to the memorandum of the [seller], although the [buyer] was regularly summoned to answer according to arts. 148 and 113 of the Swiss Code of Civil Procedure (hereinafter referred to as CCP). The second notice was sent to the [buyer] together with the express warning about the legal consequences of the failure to submit an answer to the memorandum of the [seller] (art. 113 CCP). An alleged violation of the United Nations Convention on Contracts for the International Sales of Goods (adopted in Vienna on 11 April 1980, hereinafter referred to as CISG) can be invoked on appeal to the Federal Appellate Court and can give rise to the jurisdiction of First Instance of the Canton Appellate Court (RVJ [*] 1994 p. 125 and the cited references). According to art. 114(2) CCP, this Court has the jurisdiction to make the ruling in absentia, the total value at issue in the present case giving rise to the jurisdiction of this Court to rule in the First Instance (art. 5(1) CCP and art. 46 of the Judicial Ordinance).

c) According to art. 114(3) CCP, in case of default judgment, arguments of the attending party are accepted unless their inadmissibility results from the data of the case. In accordance with the case law of the Canton Appellate Court, the claim is not absolutely inadmissible if the claim leads to the legal justification of the admissibility of the conclusions made by the Court on the basis of facts not refuted by the data of the case. In fact, the Court cannot be restrained by procedural rules to cover with judicial authority the inaccurate application of substantive law. (RVJ 1992 p. 205 and the cited references).

2. [Facts of the case, applicable law, rulings of the Court]

a) [Facts]

In the present case, it results from facts not refuted by the data of the case that the [seller] delivered blocks of stone to the [buyer] in July and September 1993. [Seller] requested payment of SFR 5,250 for the first delivery and SFR 2,820 for the rest of the delivered goods. A notice was sent on 15 April 1994 requesting the payment of the total purchase price in ten days. [Buyer] neither raised any objections to the delivery, nor informed the seller of any alleged defect in the quality of the delivered goods. On 6 May 1994, [seller] sent to buyer a written request for the payment of SFR 8,070. The payment was not effected.

b) [Applicability of the CISG]

In the present case, the dispute belongs to the domain of contracts, more precisely, the sale of goods. In fact, the [seller] demands from the [buyer] the payment of the price for the goods placed at the [buyer's] disposal in Switzerland.

      aa) According to art. 100 CISG (entered into force in Switzerland on 1 March 1991 and in Italy on 1 January 1988), the CISG applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States where the parties to the contract have their place of business (art. 1(1)(a) CISG), or when the rules of private international law lead to the application of the law of a Contracting State (art. 1(1)(b) CISG).

The last offer made before the acceptance is effective (Lichtsteiner, Convention des Nations Unies sur les contrats de vente internationale de marchandises: présentation et comparaison avec le droit suisse, in CEDIDAC n. 20 ad art. 100 CVIM [*]). In the present case, the [buyer] placed the order for the materials not long before the delivery of these materials, in spring or in the beginning of summer 1993. By that time, the CISG had already entered into force both in Italy and in Switzerland and, therefore, was applicable.

      bb) [Payment of the price]

In accordance with art. 59 CISG, the buyer must pay the price on the date fixed by or determinable from the contract. Art. 58 CISG provides for the simultaneous handing over of the goods at the disposal of the buyer and payment of the price. If the contract does not contain any different provision, the buyer must pay the purchase price when the seller places the goods at the buyer's disposal without the need for any formal request on the part of the seller. (E. Bucher, Überblick über die Neuerungen des Wiener Kaufrechts; dessen Verhältnis zur Kaufrechtstradition und zum nationalen Recht, in Wiener Kaufrecht, Berne 1991, p. 34; W. Wiegand, Die Pflichten des Käufers und die Folgen ihrer Verletzung, in Wiener Kaufrecht, p. 156).

In the present case, the [buyer] did not pay the requested price. The [buyer] did not inform the seller of any alleged defect in the quality of the delivered goods. The total price to be paid for the delivered goods was SFR 8,070. As the [seller] claimed default interest accruing from 15 April 1994, the [seller] is entitled to the interest accruing from an earlier time only if the court gives ruling ultra petita.

c) [Interest rate]

Furthermore, the [seller] demands the payment of interest of 8% per annum.

     aa) Art. 78 CISG provides for the payment of default interest without stating the interest rate. The interest rate must be determined in conformity with the law applicable by virtue of the rules of private international law (art. 7(2) CISG).

According to art. 117 LPIL [*], in case of a failure to choose the governing law, the contract is governed by the law of the State to which the contract is mostly related (art. 117(1) LPIL); the contract is deemed to be related to the State in which the party which has to fulfill the principal obligation under the contract has its place of residence, or - if the contract forms part of professional or commercial activities - its place of business (art. 117(2) LPIL); in contracts for the transfer of property, the duty of the owner is crucial for the determination of the governing law (art. 117(3) LPIL).

According to art. 118 LPIL, sales of goods are governed by the Convention on the Law Applicable to International Sales of Goods, adopted in The Hague on 15 June 1955. Rules of conflict of laws stated in that Convention are applicable even if the law governing the contract is the law of a non-Contracting State (Schwander, Internationales Vertragsschuldrecht - Direkte Zuständigkeit und Objektive Anknüpfung, in Beiträge zum neuen IPR des Sachen-Schuld-und Gesellschaftsrecht, in Festschrift für Rudolf Moser, p. 89; Knoepfler, Le contrat dans le nouveau droit international privé suisse, in Le Nouveau Droit international privé suisse, CEDIDAC, p. 93; Schnyder, Das neue IPR-Gesetz, 2e éd., p. 109).

Art. 3(1) of the 1955 Hague Convention states that sales of goods are governed by the law of the State where the seller has its place of residence at the moment of the receipt of the offer, unless otherwise agreed by the parties.

     bb) In the present case, application of those rules of conflict of laws leads to the application of Italian law. This conclusion is also the result of the application of art. 117 LPIL [*]; the principal obligation under the present contract (delivery of blocks of stone) is the [seller's] responsibility, whose place of business is in Italy. According to art. 1284 of the Civil Code of Italy, the rate of default interest is 10%, unless a higher rate is fixed by the parties. The [seller] in the present case claims the default interest at the rate of 8%. Therefore, it is possible to award a higher rate of default interest only if the Court rules ultra petita.

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff / Appellant Marmipedrotti Graniti S.a.r.l. (Marmipedrotti Graniti Ltd.) of Italy is referred to as [seller]; the Defendant / Respondent Nichini SA Pierres (Joint stock company Nichini Pierres) of Switzerland is referred to as [buyer]. Monetary amounts in Swiss Francs are indicated by [SFR].

Translator's note on other abbreviations: AJP = Aktuelle Juristische Praxis / Pratique Juridique Actuelle [Swiss law journal]; CCP = Swiss Code of Civil Procedure; CVIM = French acronym for CISG; LC = Lugano Convention [EC EFTA Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters - Lugano, 16 September 1988]; LPIL = Swiss Federal Law on Private International Law; RVJ = Revue valaisanne de jurisprudence / Zeitschrift für Walliser Rechtsprechung [Swiss law journal]; ultra petita =

** Marina Koukanova (insert bio info). The second-iteration redaction of this translation was by Dr. John Felemegas.