Translated by David Ramos Muñoz
Appeal nº 546/1999
Jurisdiction: civil
Speaker: Mr. Juan Francisco Ruiz-Rico Ruiz.
INTERNATIONAL SALE OF GOODS: applicable law: Spanish seller, American
buyer: United Nations Convention on contracts for international sale, Viena
11-4-1980;
SELLER’S OBLIGATIONS: COMPENSATION: lacks of conformity or defects:
negative: the fact that in the country of destination the product subject
matter of this case was not allowed in the distribution network does not
imply that it was in bad conditions: inspection and ellection by the claimant:
negligence of the claimant in not ascertaining the qualities that it had
to enjoy in that country: meat available for human consumption.
The company “L&M, Internacional” filed a claim in minor amount proceedings (jucio declarativo de menor cuantía) against the company “Granavi, SA”, before the First Instance Court nº 8 from Granada.
The Court, with date 23-4-1999, pronounced a sentence dismissing the claim.
The Court of Appeals declares there is no room for the appeal raised by the claimant
In the city of Granada, second of March 2000. The section 4 of this
Court of Appeals has examined in appeal the previous precedents of the
Minor Amount proceedings (Jucio de Menor Cuantía), followed before
the First Instance Court nº 8 of Granada, by virtue of a claim from
“L&M International”, represented by the attorney Mrs. Francisca M.
M, against Granavi SA, represented by the attorney Mrs. Mª Carmen
Q. G.
FACTS
FIRST.- The aforementioned decision, dated 23rd April 1999 contains the following ruling: “That dismissing the claim formulated by the attorney Mrs. Francisca M.M., representing the company “L & M Internacional”, against the company “Granavi, S.A.”, represented by the attorney Mrs. Mª del Carmen Q. G., I have to acquit, and I acquit the claim from the arguments raised against it, and impose the costs to the plaintiff.
SECOND.- Once this appeal, brought by the claimant, went through the proceedings before this Court (Audiencia Provincial), the barrister Mr. José Jesús C. L., in the hearing, asked for the annulment of the appealed decision; while Mrs., Florencia L. M., the barrister of the respondent, asked for the confirmation of that decision and the imposition of the costs to the counter-party.
THIRD.- The legal prescriptions for the proceedings have been observed.
Being the speaker Mr. Juan F. Ruiz-Rico Ruiz
LEGAL DECISION
FIRST.- We have to accept in its integrity the drafting of the facts declared as proven in the first legal conclusion of the appealed decision which, in order to avoid unnecessary reiterations considered here as being reproduced.
Then, we have to set the applicable law, since the case at hand is about an international sale where the seller is Spanish and the buyer is American. We disagree with the First Instance Court in the application of the Rome Convention from 19th June 1980 about contractual obligations since that treaty has a territorial scope coincident with the countries that are parties to the European Community and, consequently, it cannot be alleged in the relationships between parties that are not national from those States. Therefore, it is totally applicable the Spanish legislation on the basis of the letter C of the article 10 of the Spanish Civil Code, that sets, as a conflict of law rule, in the absence of an express choice of law by the parties, nationality or regular residence, the law of the place of the conclusion of the contract, and with regard to the sales of goods effected in commercial places of business, the law of the place where those are located. A proof of that is the reference of the parties in the legal pleadings to the rules of the Civil Code and the Commercial Code. Nevertheless, it is of specific application to the case the United Nations Convention on Contracts for the International Sale of Goods, signed in Viena on the 11th of April 1980, to which Spain as well as the United States are both parties.
SECOND.- Since the action here exercised derives from a pretended breach of contract, arising out of the delivery of the goods consisting in “frozen hen and chicken legs for paella” in a state that made them not fir for their consumption and commercialization, understanding that there had been an “aliud pro alio”, the proof corresponds to the claimant, since this facts amount to a base of an action under art. 1214 of the Spanish Civil Code.
However, we have to agree with the Judge on that it has not been demonstrated those facts and, in any event, it is not clear whether it was attributable to the respondent.
With this purpose we have to refer to two essential facts: one, that the representative of the claimant was visiting the place of business of the respondent and, on the basis of that inspection and the later verifications of the products, the (now controversial) contractual relationship was initiated; second, that it was not demonstrated that the supplied products differ from those inspected in December 1995.
A proof of that is the sending, with the two controversial installments, of the necessary health certificates, issued by the competent veterinary, who, after setting the specific compulsory controls, certified that their ellaboration, storing and loading had been effected in accordance with the health rules in effect.
It is necessary to bring the attention the article 35 of the aforementioned Viena Convention of 11th April 1980, which determines the cases where the goods are conforming to the contract, by making reference to the ordinary purpose to which those are dedicated, to the specific purposes made known to the seller and to those that possess the qualities of the sample or model, concluding that the seller will not be responsible of the lack of conformity of the goods that the buyer “knew or could not have been unaware of at the moment of the conclusion of the contract”.
In this respect, the circumstance that the in country of destination
(Ukraine) it was not allowed the introduction in the distribution network
of those products does not mean that those were in bad conditions, and
least, that the respondent breached the contract that did not specify the
conditions that, to this purpose, those had to enjoy, precisely considering
that the claimant inspected and chose them. The negligence is in the part
of the claimant, who made the different orders without ascertaining the
conditions that those had to enjoy in that country. For this reason, the
features that the goods presented (blood clots, biliary pigmentation and
rests of feathers) did not imply that those qhere not adequate for human
consumption, but that their distribution was impeded on the basis of a
rule of that state that we don’t know (GOST) and by “infraction of
killing technology” that we could not know. In this sense, it would have
been easy to the claimant to preserve some samples in order to prove that
those did not correspond to the stocks taken. In sum, the prohibition of
distribution or consumption of a certain goods in a certain country does
not mean that it is not fit for the agreed purpose, when it was not made
known to the seller the conditions and way in which the product had to
be presented, because it happens that, even among the countries parties
to the EU some of them may prohibit the distribution of goods that do not
enjoy the conditions imposed by that state (namely the meat after the appereance
of the “mad cows disease”), even though those are fit for consumption in
the country of origin.
THIRD.- Even for the hypothesis, notdemonstrated, that the products were not in optimal state of conservation, we cannot either make the respondent responsible of that fact. It has been demostrated that the order of mid-March 1996 crossed the Hungarian border the 26th of that month, arriving to its destination (Kiev) the next day. However, it is not until the first day of April when the expert of the Chamber of Commerce of that city drew up the inspection document.
In the same way, the order of end of March arrived to its destination the day 12th of April, being unresolved the unloading until the local feasts concluded. Nevertheless, the driver who did the transportation stated that the CMR was signed because the goods where in correct state. The Inspection document was drawn up the day 17th of April. In consequence, there were four or five days since the reception until the inspection where, if there was any lack of conformity in the preservation of the products, in no way can it be attributable to the respondent. Moreover, if we also consider the signature in the reception documents (Docs. 1 and 4 of the response) and the confirmation of that conformity by response of the legal representative of the claimant to the point nº 13, the conclusion will be identical to that of the appealed decision.
Analyzed the cited articles and rest of provisions of appropriate and
general aplication.
WE DECIDE
This Section has decided to confir in its integrity the decision stated by the First Instance Court nº 8 of this city, with express imposition of costs of this appeal to the appealing party.
By this decision we state, order and sign