Decisión of the Court of Appeals nº 313/2001 Murcia (Section 1ª), 18th June
Appeal nº 141/201.
Jurisdiction: civil
Speaker: Mr. D. Carlos Moreno Millán.
The Court declares there is room to the appeal raised by the company “Marín Giménez Hnos, SA” against the decision dated 07-02-2001, stated by the First Instance Court nº 2 from Caravaca de la Cruz, and annuls it in the sense explained in the legal conclusions of the present resolution.
In the city of Murcia, 18th June 2001.
LEGAL CONCLUSIONS
FIRST.- Against the contents of the first instance decision that estimates
in its integrity the issue of the competence by international (declinatoria),
explained by the attorney Mr. N. L. Representing the German company “Binder
Gmbh, Co”, and rules in favour of the competence of the Courts of that
state for judging the action for breach of contract exercised by the Spanish
company “Martín Giménez Hnos., SA”, against the mentioned
German company, the referred claiming party, disagreeing with the decision,
comes to this appeal asking for the annulment of that decision and the
ruling of a different one that declares the competence of the Spanish Courts
and, concretely, that of First Instance of Caravaca de la Cruz.
SECOND.- Once specified in the indicated terms the issue subject of debate in this appeal, this Court understands, after the examination and review of everything the parties acted and alleged, that, infact, the appealing party has reasons in what it explains, and consequently, the annulment of that decision is correct.
In this sense it is useful to take into account, in order to solve the conflict of competence, that article 5.1 of the Brussels Convention sets a special forum of judicial competence for contracts. That treaty allows the claimant to present its claim either before the Courts of the respondent’s residence, according to article 2 of the aforementioned Convention, or before the Courts of the country where the breached contract had to be performed.
Considering this, it is procedent to determine which is the breached obligation and, then, to specify its place of performance.
However, in this case, given that the company “Binder Gmbh” denies the existence of the contract, it is necessary for the Court to consider the existence and validity of the contract resorting to the Private International Rules of the company’s country, which determine the “applicable law” to the international contract subject matter of the dispute. This is in accordance with the opinion of the European Court of Justice because, if the contract does not exist, or is null, or does not bind the parties of the dispute, the Judge will not be able to declare its competence according to the aforementioned article 5.1 of the Brussels Convention.
THIRD.- In consequence, once admitted by this Tribunal the existence and validity of the referred contract, as proven by the documents attached to the statement of claim and communications via fax of the respondent asking for the cancellation of the referred contract it is procedent to determine, in first place, and subject to the Private International Law, which will be the law governing the referred contractual agreement.
It is evident that, initially, this contract is within the scope of
application of the United Nations Convention on Contracts for the International
Sale of Goods, drafted in Viena the 11th of April 1980, since the parties
are companies that have their places of business in different states, being
these contracting states, and the parties have not excluded the application
of the Convention.
Subsidiarily, and in those contractual matters not governed by the
CISG, which happens here with the validity of the contract, it is necessary
to have resort to the rules of the Rome Convention 1980, which establishes,
in first place, as the law governing the contract, the law chosen by the
parties and, in second place, as the case at hand, the law determined by
the presumptions contained in numbers 2, 3 and 4, Article 4 of the Rome
Convention, which clearly imply, on contracts for the international sale
of goods, the application of the law of the country where the seller has
its residence, which, in this case is the Spanish law.
FOURTH.- Once solved the previous question, and applying the special forum contemplated under Article 5.1 of the Brussels Convention, based upon the existence and validity of the contract, it is now necessary to examine the nature of the obligation considered as a basis for the claim that is, the “disputed” obligation the controversy arises from.
In that respect, the ECJ set an analytical-distributive method that calls for the individualization of that obligation, and considers separately each autonomous obligation, distinguishing the Court between the so-called autonomous contractual obligation and the obligation that substitutes the breached obligation.
Thus, the ECJ, in the “De Bloos” decision, stated that, for the application of Article 5.1 of the Brussels Convention it is not necessary to separate the disputed obligations and their penalties. That is, it is not considered as an autonomous obligation that which arises from the non-performance or defective performance of any of the obligations derived directly of the contract.
Therefore, in the present case the duty to pay damages is not an autonomous obligation, but an obligation that substitutes the contract’s breached obligation. It is evident, as a consequence of it, that the obligation, whose place of performance determines the competence, is not the duty to pay damages, since it substitutes the contractual obligation that has been breached (obligation of taking delivery of the goods put at the buyer’s disposal by the claimant), but the latter that, in the end, determines the international competence forum.
FIFTH.- Finally, with respect to the place of performance of the obligation that constitutes the basis for the claim, it can be stated that the referred Article 5.1 BC does not establishes the way or criterion to determine that place. It has been the ECJ which, from the “Tessili” case, has been stating repeatedly that the expression “place where the obligation was or should have been performed” must be interpreted as a reference to the law that governs the controversial obligation according to the Private International Law rules of the court before which the dispute is submitted.
That is true in the present case. The referred law is the aforementioned CISG, that sets the following criterion: Initially the place that the parties to the contract have designated in a contract clause. Subsidiarilly, without that designation, or when it is non-valid or fraudulent, the place of performance of the obligation will be that determined in accordance with the law that governs the contract (ECJ case 6th October 1976, Tessili; ECJ case 6th October 1976, De Bloos and ECJ case 28th September 1999, Concorde), that is, throughout the application of the CISG and, particularly, of its Article 31 that acts as a second criterion and states, as the place of performance of the obligation, that is, place of delivery of the goods, that one where the seller will have to put the goods with the first carrier to transport them to the buyer.
In summary, and according to the explained before, this Court states that the place of performance of the obligation was in the facilities of the company “Marín Giménez Hnos.” in Caravaca de la Cruz, either by taking into account the clause of designation stipulated in the contract and that literally reads “ex factory Caravaca (Murcia) net by mutual agreement of the parties on July 5th 1999”, or by applying the aforementioned Article 31 CISG, given that the place of performance of the obligation to take delivery of the goods, which is the obligation that constitutes the basis for the claim, is at the referred premises of the company which claimed and now appeals.
In conclusion, this Court estimates the present appeal, reversing thus the appealed decision.
SIXTH.- Given the estimation of this appeal, there will not be declaration about the costs caused in this stage, imposing to the company Binder Gmbh those accrued in first instance.
Once seen the applicable laws
WE DECIDE
That estimating the appeal formulated by the Barrister Mrs. C. C.-M., representing the company “Marín Giménez Hnos. S.A.”, against the decision of the First Instance Court no. 2 of Caravaca de la Cruz, in the (Juicio de Menor Cuantía”) (question of competence by (declinatoria) num. 212/2000, we have to reverse completely the decision and, according to it, we have to declare the international competence of the First Instance Courts of Caravaca de la Cruz that correspond for the (conocimiento) of the main issue subject matter of the dispute without decision on the costs on appeal, with imposition to the company Binder Gmbh those accrued in first instance.
The decision will be notified and a certification of it taken to the file of this Court and of the First Instance Court, to which they will be given back for their execution and compliance.
