KS ZA - 15Cb/206/2002sk en

Regional Court in Zilina

10 March 2008 [15 Cb/206/2002]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC
[slovenske znenie]

The Regional Court in Zilina, deciding by a single judge, JUDr. Erika Canadyova, in the case of Plaintiff M.M., s.r.o. [Seller], with its registered office in M., H. ___, Czech Republic, represented by Mgr. P.S., attorney, versus Defendant I., spol. s r.o. [Buyer], with its registered office in M.N.O., ___ [Slovak Republic] …, regarding payment of 7,001.30 Euro [EUR] and appurtenances

h a s   d e c i d e d   a s   f o l l o w s:

The [Buyer] is obliged to pay to the [Seller] a sum in amount of 4,001.30 EUR with interest of 0.035 % daily:

-         on the sum of 2,738.90 EUR for the period from 7 May 2001 until payment;

-         on the sum of 4,262.40 EUR for the period from 19 May 2001 until 22 May 2003;

-         on the sum of 3,262.40 EUR for the period from 23 May 2003 until 21 August 2003;

-         on the sum of 1,262.40 EUR for the period from 22 August 2003 until payment

and to pay the reimbursement of costs of the proceedings to the legal counsel of the [Seller] Mgr. P. S., attorney amounting to 48,569.50 Slovak koruna [Sk] within three days after the judgment comes into force.

REASONING

The [Seller] claimed in the proceedings by its action of 20 June 2002, delivered to the Regional Court in Zilina on 24 June 2002, its right to payment of:

-         The sum of 7,001.30 EUR and interest of 0.05 % daily on the sum of 2,738.90 EUR for the period from 7 May 2001 until payment; and

-         Interest of 0.05 % daily on the sum of of 2,738.90 EUR for the period from 19 May 2001 until payment as a purchase price for delivered goods – stainless steel sheets, as it was billed by invoice no. 50543/1 for the sum of 5,356.80 Deutsche Marks [DM] corresponding to 2,738.90 EUR due on 6 May 2001 and invoice no. 50603/1 for the sum of 8,336.50 DM corresponding to 4,262.40 EUR due on 18 May 2001.

The [Seller] also claimed the right to interest under sec. 369 of the Slovak Commercial Code.

The [Buyer] argued in the proceedings that the claimed amount of 7,001.30 EUR does not correspond to its debt emerging from invoices no. 50543/1 and 50603/1, as the [Buyer] paid to the [Seller] with respect to invoice 50543/1 on 20 August 2003 a sum of 85,334.- Sk and on 21 May 2003 a sum of 41,685.- Sk and paid to the [Seller] with respect to invoice no. 50603/1 on 5 December 2001 a sum of 110,005.26 Sk. The [Buyer] therefore argued that with respect to invoice no. 50543/1, it has to pay only the sum of 2,738.94 EUR and with respect to invoice no. 50603/1, it has to pay only the sum of 1,262.45 EUR.

The Court had already ruled on the case in its previous judgment of 31 October 2003, rec. no.: 15 Cb/206/2002-28 and upheld the action in its entirety. However, upon appeal of the [Buyer] the Supreme Court of the Slovak Republic cancelled the judgment by its resolution of 17 June 2005, rec. no. 1 Obo/188/2004-64 and returned the case to this Court for further proceedings and ordered the Court to perform further investigation in order to determine the factual situation and to re-examine the claim with respect to interest, taking into consideration partial payments made by the [Buyer].

The [Seller] subsequently partially withdrew the action with respect to 3,000.- EUR and the Court stayed the proceedings with respect to this sum in its resolution of 8 March 2006, rec. no.: 15 Cb/206/2002-78 which came into force on 1 April 2006. Therefore the subject matter of the proceedings was payment of 4,001.30 EUR.

The [Seller] changed its action and asked the Court to bind the [Buyer] to pay the sum of 4,001.30 EUR and interest of 0.035 % daily:

-         on the sum of 2,738.90 EUR for the period from 7 May 2001 until payment;

-         on the sum of 4,262.40 EUR for the period from 19 May 2001 until 22 May 2003;

-         on the sum of 3,262.40 EUR for the period from 23 May 2003 until 21 August 2003; and

-         on the sum of 1,262.40 EUR for the period from 22 August 2003 until payment

and did not insist on the previously claimed right to interest of 0.015 % daily on the sum of 4,262.40 EUR for the period from 19 May 2001 until payment, on the sum of 2,738.90 EUR for the period from 7 May 2001 until payment and withdrew its action with respect to this part.

The Court approved the change of the action at the hearing held on 10 March 2008.

The Court gathered evidence by interrogation of the legal counsel of the [Seller], reading of documents submitted to the Court and thereby examined the following factual situation.

The Court determined that the sum of 4,001.30 EUR claimed by the [Seller] emerged from the unpaid invoice no. 50543/1 and invoice no. 50603/1 as drawn to claim the purchase price for the delivered goods – stainless steel sheets. The [Seller] submitted to the Court the documents – invoices, corresponding bills of lading no. 40603-1 of 18 April 2001 and no. 40543-1 of 6 April 2001. The [Seller] evidenced delivery of the goods by international bill of lading CZY 3274971 which stated that the [Buyer] was handed over the goods – stainless steel sheets in amount of 2,196 kg on 1 April 2006 and confirmed the delivery by its seal and signature. The [Seller] evidenced the delivery also by JCD, rec. no. 10.

The [Buyer] did not oppose the concluding of the contract of sale and the delivery of the goods – stainless steel sheets in the abovementioned amount – and did not oppose the invoiced purchase price as prescribed in invoices no. 50543/1 and 50603/1. The [Buyer] nevertheless argued that it partially paid the invoiced sum. The [Buyer] was obliged to evidence its arguments and to ascertain the exact amount already paid with respect to each invoice. The [Buyer] failed to provide such evidence in the proceedings. On the other hand, the [Seller] submitted documents, rec. no. 38 to 40 proving that the [Buyer] paid on 23 May 2003 the sum of 1,000 EUR with respect to invoice no. 50603/1 and on 22 August 2003 the sum of 2,000.- EUR with respect to invoice no. 50603/1. The sum of 2,518.01 EUR paid by the [Buyer] on 10 December 2001 referred to other invoices, as the payment included a variable symbol 505441 which does not correspond to any of the abovementioned invoices, rec. no.: 38, 39, 40.

The [Buyer] therefore provided no evidence proving the amount or manner in which it partially paid the abovementioned invoices. On the other hand, the [Seller] evidenced by records from a bank account that the [Buyer] partially paid the invoices totally in amount of 3,000.- EUR as prescribed above. The Court therefore upheld the action of the [Seller] with respect of 4,001.- EUR as a purchase price for the goods delivered under the UN Convention on Contracts for the International Sale of Goods which is applicable since the [Seller] has its place of business in the Czech Republic and the [Buyer] has its place of business in the Slovak Republic. As both States are contracting parties to the UN Convention on Contracts for the International Sale of Goods (published in the Collection of Acts as no. 160/1991 Coll., hereinafter referred to as “UN Convention”), the Court applied this Convention prior to provisions of the Slovak Commercial Code.

The court granted to the [Seller] right to payment of the principal, as the [Buyer] did not oppose the fact that the parties to the proceedings concluded a contract of sale, that the goods were delivered to the [Buyer], and did not challenge the invoiced purchase price. The [Buyer] did not prove in the proceedings that it paid more than 3,000.- EUR toward this price. The burden of proof for such argument of the [Buyer] was on the [Buyer] who failed to satisfy it.

The [Buyer] did not oppose the claimed interest of 0.05 % daily on the sum in arrears and did not argue that the claimed interest rate is unreasonably high. The [Buyer] asked the Court to correct the periods of time in which the default lasted but did not challenge the interest rate. The Court therefore granted the right to interest as claimed in the action in connection with the partial withdrawal of the action, i.e., granted to the [Seller] right to interest of 0.035 % daily on the sum in arrears as a penalty to the [Buyer] for failing to fulfil its obligation to pay the purchase price duly and on time. The Court qualified the right to interest under sec. 735 of the Czech Commercial Code, since the UN Convention does not prescribe the interest rate and the Court therefore applied the law of the Czech Republic, i.e., sec. 735 and sec. 369 of the Czech Commercial Code in force at the time of creation of the contractual relationship in April and May 2001, as no choice of law was proved to be made in this case (the Court applied sec. 10 part 2 a) of act no. 97/1963 Coll.). With reference to these provisions, the court determined the interest rate according to the law of the country of the [Seller], i.e., according to sec. 369 and 735 of the Czech Commercial Code.

The court granted the right to payment of the principal as a right to payment of the purchase price under article 30 of the Convention in connection with article 53 of the Convention which prescribes that the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention. With reference to the abovementioned provisions of the Czech Commercial Code in force in 2001, the court granted also the right to interest under article 78 of the Convention which states that if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.

As the [Seller] was successful in asserting its claim, with reference to sec. 142 part 1 CPC, it is entitled to reimbursement of costs of the proceedings consisting of the paid court fee amounting to 15,280.- Sk and costs of legal aid amounting to 48,569.50 Sk.

Instruction: An appeal against this judgment must be filed within 15 days after its receipt via this court.

Regional Court in Zilina, 10 March 2008

JUDr. Erika Canadyova
Judge