OS BJ - 1Cb/381/2006sk en

District Court in Bardejov

9 March 2007 [1Cb/381/2006]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC
[slovenske znenie]

The District Court in Bardejov, deciding by a single judge, JUDr. Jana Dubrivska, in the case of Plaintiff K. B.n. T.P. [Seller], with its registered office in ul. F.P., Republic of Poland …, represented by attorney JUDr. I.P.G., versus Defendant M. M., G. K. [Buyer], with its registered office in ___, B. [Slovak Republic] …, regarding payment of 5,000.- Polish zloty [PLN] 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] the sum of 5,000.- PLN and interest of 14.5 % annually:

On the sum of 19,188.- PLN for the period from 23 November 2004 until 3 January 2005;

On the sum of 9,188.- PLN for the period from 4 January 2005 until 31 May 2005;

On the sum of 7,000.- PLN for the period from 1 June 2005 until 9 June 2005;

On the sum of 5,000.- PLN for the period from 10 June 2005 until payment

Everything within fifteen days after the judgement comes into force.

The Court dismisses the case in the remaining part.

The [Buyer] is obliged to pay to the [Seller] a sum of 25,196.- Slovak koruna [Sk] as a reimbursement of costs of the proceedings within fifteen days after the judgment comes into force on the account of legal counsel of the [Buyer] JUDr. I.P.G.

REASONING

The [Seller] claimed in the proceedings, by its action filed with the court on 20 November 2006, its right to payment of 5,000.- PLN with interest of 14.5% annually:

-         On the sum of 19,188.- PLN for the period from 23 November 2004 until 3 January 2005;

-         On the sum of 9,188.- PLN for the period from 4 January 2005 until 31 May 2005;

-         On the sum of 7,000.- PLN for the period from 1 June 2005 until 9 June 2005;

-         On the sum of 5,000.- PLN for the period from 10 June 2005 until payment and reimbursement of costs of the proceedings, since the [Buyer] did not pay the residual part of purchase price for goods delivered  by the [Seller].

The [Seller] justified its claim by stating that it delivered the goods to the [Buyer], who received them with enclosed invoice no. 1176/04/MG of 15 November 2004 for the sum of 19,188. - PLN due on 22 November 2004, The [Buyer] paid this invoice partially in sum of 10,000.- PLN on 3 January 2005, in sum of 2,188.- PLN on 31 May 2005 and in sum of 2,000.- PLN on 9 June 2006. The [Seller] claimed non-payment of the residual part of the purchase price in the amount of 5,000.- PLN and evidenced that it prompted the [Buyer] to pay this sum by letter of 12 July 2005.

Before opening of the court proceedings, the [Seller] ascertained its claim with regards to payment of interest by a motion delivered to the court on 14 February 2008.

With reference to section 41 part 2 of the Slovak Civil Proceedings Code (hereinafter referred to as “CPC”), the court qualified this motion as a partial withdrawal of the action.

According to sec. 96 part 1 CPC, the plaintiff can withdraw its claim partially or in its entirety. If it withdraws the action in its entirety, the court will stay the proceedings. If it withdraws the action partially, the court will stay the proceedings with respect to this part.

According to sec. 96 part 3 CPC, the defendant cannot prevent staying of the proceedings in case of withdrawal, if this withdrawal was performed before the opening of the court proceedings, or in case of divorce proceedings, proceedings on nullity of matrimony or proceedings on determination of whether matrimony exists or not.

Since the action was withdrawn by the [Seller] before opening of the court proceedings with respect to payment of interest of 14.5 % annually on the sum of 5,000. - PLN for the period from 10 June 2005 to 9 June 2006, the court stayed the proceedings with respect to this part with reference to sec. 96 part 1, 3 CPC.

Though duly summoned on 23 January 2007, the [Buyer] did not appear before the court in the court proceedings held on 5 March 2007. The [Buyer] did not justify its absence, did not answer to the action and did not ask for adjournment of the proceedings. The court, with reference to sec. 101 part 2 CPC, therefore tried and decided the case in absence of the [Buyer] taking into consideration records and evidence gathered.

The [Seller] insisted in the proceedings on its action in connection with its abovementioned partial withdrawal. The [Seller] claimed its right for payment of the purchase price based on an oral contract of sale concluded as a result of an oral purchase order made by the [Buyer]. The [Seller] alleged that it delivered the goods to the [Buyer], as they were specified in the enclosed invoice, and the [Buyer] received the goods and approved the delivery by its signature and company seal on this invoice. The [Buyer] did not notify the [Seller] of any lack of conformity of the goods and failed to duly pay the purchase price, since it paid it only partially in a manner that is specified in the bank records of the [Seller]. The [Seller] repeatedly urged the [Buyer] to pay the residual part of the purchase price. The [Buyer] did not challenge the amount of the purchase price.

The court gathered evidence by interrogation of the [Seller] represented by its attorney, reading documents attached to the action consisting of the invoice including VAT no. 1176/04/MG of 15 November 2004 for the sum of 19,188.- PLN due on 22 November 2004 in its Polish original and official Slovak translation, bank records of [Seller]’s bank account from 3 January 2005, 31 May 2005 and 9 June 2005, record from Polish Companies Register identifying the [Seller], record from Slovak Trade Register identifying the [Buyer] and [Seller]’s written motion of 12 February 2007 and thereby investigated this factual situation:

 
The [Seller] and the [Buyer] concluded an oral contract of sale under which the [Seller] delivered to the [Buyer] the goods consisting of 533 blouses, and the [Buyer] approved receiving the goods by its signature and company seal put on the invoice no. 1176/04/MG drawn on 15 November 2004. The [Seller] claimed its right for payment of the purchase price for the goods delivered by this invoice in amount of 19,188.- PLN. The [Seller] stated in the proceedings that both parties mutually agreed on this price and date of maturity at the time of concluding of the contract and the [Buyer] approved these facts by signing the invoice. According to this invoice, the [Buyer] promised to pay the purchase price by a bank transfer by 22 November 2004. As it is clear from the bank records of the [Seller]’s account, the [Buyer] paid a sum of 10,000.- PLN for this invoice on 3 January 2005, a sum of 2,188.- PLN on 31 May 2005, a sum of 2,000.- PLN on 9 June 2005. [Buyer] thereby the [Buyer] paid for this invoice a total of 14,188.- PLN. The [Seller] stated that the [Buyer] did not pay the residual part of the purchase price in amount of 5,000.- PLN, although the [Seller] repeatedly urged the [Buyer] to do so.

The [Seller] has its registered office in the Republic of Poland; the [Buyer] has its place of business in the Slovak Republic. This constitutes a relationship with international aspect and the court therefore had to examine its jurisdiction to try and decide this case and to determine the applicable law in order to qualify the [Seller]’s claim.

Under sec. 2 of act no. 97/1963 Coll. on international private and procedural law as amended, the provisions of this act can only be used, unless a particular international convention ratified by the Slovak republic or an act created to implement such convention, stipulates otherwise.

Under article 37 part 1 of the Treaty between the Czechoslovak Socialist Republic and People’s Republic of Poland on legal aid and cooperation in civil, family, labour and criminal relationships published in Collection of Acts as no. 42/1989 Coll., contractual relationships between parties from these states will be governed by the law of the country where the contact has been concluded, unless the parties have chosen a different law to be applicable to their relationship. In these matters, the jurisdiction of the court of the defendant’s registered office of domicile is established, if the defendant has assets in this country.

The [Buyer] has its place of business in Slovakia and under the contract of sale, the goods were delivered to the [Buyer] in Slovakia and therefore with respect to the abovementioned article 37 part 1 of the Treaty, Slovak courts have jurisdiction to try and decide this case.

The subject matter of this case is a payment of the purchase price. Each party has its registered office or place of business in different State.

Under sec. 756 of the Slovak Commercial Code, the provisions of this Code will be used, unless particular international convention ratified by the Slovak Republic and published in Collection of Acts stipulates otherwise.

Contracts of sale concluded by parties with their place of business in different states, if these states are parties to the Convention, will be governed by the UN Convention on Contracts for the International Sale of Goods (hereinafter referred to as the “Convention”), published in Collection of Acts as number 160/1991 Coll.

The [Seller] has its registered office in the Republic of Poland and the [Buyer] must have been aware of this fact, since it was expressly stated on the invoice no. 1176/04/MG, which was originally drawn in Polish language. The [Buyer] has its place of business in Slovakia. Both these States are parties to the Convention and there was no evidence that the contractual parties intended to exclude application of this Convention to their relationship and therefore the Convention shall be applied.

-         Under article 11 of the Convention, a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.

-         Under article 30 of the Convention, the seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention. The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention (article 53 of the Convention).

-         Under article 59 of the Convention, the buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller.

-         Under article 78 of the Convention, 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.

-         Under article 7 of the Convention, questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.

Under sec. 155 part 2 b) CPC, the term of the judgment awarding pecuniary performance may be denominated also in foreign currency where the circumstances permit, provided that one of the parties is an exchange non-resident of the State.

Under sec. 2 of act no. 202/1995 Coll. (the Foreign Exchange Act) an exchange resident of the state is a legal person with its registered office in Slovakia or a natural person with its domicile in Slovakia and also a subsidiary of an exchange resident located abroad. An exchange non-resident of the state is a legal person or a natural person which is not an exchange resident.

With reference to the evidence gathered, the court found that the [Seller] fulfilled its contractual obligation to deliver the goods to the [Buyer]. The delivery of the goods by the [Seller] and the receipt of the goods by the [Buyer] was evidenced by the signature and seal of the [Buyer] on the invoice no. 1176/04/MG made at the time of the delivery. Receipt of the goods is also evidenced by the fact that the [Buyer] subsequently partially paid the purchase price for these goods on 3 January 2005, 31 May 2005, 9 June 2005, whereby the residual unpaid part of the purchase price remained 5,000.- PLN. The court therefore had no doubts about the delivery of the goods, amount of the purchase price and its date of maturity, as it was prescribed in the invoice no. 1176/04/MG, and about the fact that the [Buyer] did not pay the residual part of the purchase price. The [Buyer] did not oppose the [Seller]’s claim during the course of the proceedings, did not answer to the action which was duly delivered to it on 23 January 2007 and did not appear before the court, though having been duly summoned and did not ask for adjournment of the proceedings.

With reference to the evidence gathered, taking into consideration the abovementioned provisions of the Convention, the court concluded that the claim asserted by the [Seller] in its action is justified in its entirety. The court therefore on 9 March 2007 pronounced the judgment and thereby bound the [Buyer] to pay to the [Seller] a sum of 5,000.- PLN and, because of the [Buyer]’s default with its payment, also interest as is specified in the judgment. The [Buyer] was obliged under the contract of sale to pay the purchase price to the [Seller] by a bank transfer by 22 November 2004, as was specified in the invoice. The [Buyer] failed to duly fulfil this obligation and on time and was in default with payment of this sum from the first day after the date of maturity prescribed in the invoice. The [Buyer] is therefore obliged to pay interest on this sum, as is specified in this judgment.

The court decided about the reimbursement of the costs of judicial proceedings under sec. 142 part 3 CPC in connection with sec. 151 part 1 CPC and granted a full reimbursement of the costs to the [Seller], since the [Seller] was not successful in asserting its claim only in a marginal part of it. The [Seller] was granted right for reimbursement of court fee for the action in amount of 2,808.- Sk, reimbursement of costs for official translation of the documents in amount of 1,200.- Sk, reimbursement of traveling costs in amount of 7,104.- Sk, and costs of legal aid duly enumerated and claimed. The [Buyer] is therefore obliged to pay on the account of [Seller]’s attorney JUDr. I.P.G. a total sum of 25,196. – Sk.

Instruction: An appeal against this judgment must be filed via the District Court in Bardejov within fifteen days of its receipt.

District Court in Bardejov, 9 March 2007

JUDr. Jana Dubivska, Judge