OS BB - 64Cb/194/2007 sk en

District Court Banska Bystrica

22 February 2008 [64 Cb/194/2007]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC
[slovenske znenie]

The District Court of Banska Bystrica, deciding by a single judge, Mgr. Miriam Kamenska, in the case of Plaintiff J. A., [Seller], with its registered office in D.K.N.L., Czech Republic, versus Defendant E. – E.S., S.r.o. [Buyer], with its registered office in S. Z., ___, [Slovak Republic], regarding payment of 60,000.- Slovak koruna [Sk] with 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 60,000.- Sk within three days after this judgment comes into force; and

The [Buyer] is obliged to pay to the [Seller] a sum of 11,041.- Sk as a reimbursement of costs of the proceedings within three days after the judgment comes into force.

REASONING

By its action filed with the court on 9 October 2007, the [Seller] claimed in the proceedings its right to payment of 60,000.- Sk as the purchase price for goods delivered to the [Buyer]. The [Seller] stated that the [Buyer] placed a purchase order for delivery of 300 large-capacity bags by a phone call. The [Buyer] confirmed its purchase order via e-mail and the parties to the proceedings subsequently concluded a contract of sale. Under the contract, the [Seller] delivered to the [Buyer] the goods in the agreed amount. The [Buyer] took possession of the goods and did not reject them. Upon the delivery, the [Seller] issued invoice no. 2005600006 for the sum of 60,000.- Sk due on 6 February 2007 and thereby asserted its right to payment of the purchase price for the goods delivered. The [Buyer] did not fulfil its obligation to pay the purchase price.

The court ordered a hearing on 22 February 2008 and duly summoned the [Buyer] in accordance with sec. 48 part 2 of the Slovak Civil Procedure Code (hereinafter referred to as “CPC”). The [Buyer] did not appear before the court and did not justify its absence. The court therefore tried the case in its absence with reference to sec. 101 part 2 CPC.

The court evaluated the evidence submitted by the [Seller] that:

-         On 19 January 2007, the [Buyer] sent an e-mail to the [Seller] with a purchase order stating that, in accordance with the previous phone call, the [Buyer] orders 1,000 large-capacity bags for the of price 200.- Sk per unit in three deliveries of 330 units to be performed each fourteen days;

-         On 23 January 2007, the [Seller] and the [Buyer] concluded a contract of sale pursuant to which the [Seller] was obliged to deliver 300 large-capacity bags and the [Buyer] was obliged to pay the purchase price amounting to 200,- Sk per bag;

-         On that same day, the [Buyer] accepted possession of 300 bags from the [Seller] and approved the delivery by its signature and seal on bill of lading no. 0560006;

-         The [Seller] then issued invoice no. 2005600006, dated 23 January, thereby asserting its claim for payment of the purchase price amounting to 60,000.- Sk corresponding to 300 bags delivered to the [Buyer], as evidenced by bill of lading no. 0560006, with a unit price of 200,- Sk.

Since the relationship concerned in this proceedings is based on a contract of sale, where the parties have their place of business in Contracting States of the UN Convention on Contracts for the International Sale of Goods, published in the Collection of Acts as no. 160/1991 Coll., this relationship shall be governed by the Convention which is applicable prior to the Slovak Commercial Code. Since the Convention does not regulate all issues pertaining international sale of goods, in the absence of such regulation the law chosen by parties to a contract is applicable. Since the parties to this contract did not make a choice of law, sec. 10 part 2 of act no. 97/1963 Coll. on International Private and Procedural Law, as amended, stipulates that the applicable law shall be the law of the State where the seller has its registered office (residence) at the time of concluding the contract, i.e., the law of the Czech Republic in this case.

-         Under sec. 409 part 2 of Czech act no. 513/1991 Coll. Commercial Code, as amended, in a contract of sale, the seller undertakes to deliver movable property (goods), determined specifically or with respect to its type and amount, and to transfer title to the goods and the buyer undertakes to pay the purchase price.

-         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.

-         Under article 53 of the Convention, the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.

-         Under sec. 10 part 1 of act 97/1963 Coll., if the parties have not made such choice of law, their contractual relationships will be governed by the law which assures their reasonable solution.

-         Under sec. 10 part 2 a) of act 97/1963 Coll., with reference to the abovementioned, contracts of sale and work contracts will usually be governed by the law of the country of seller’s or constructor’s registered office (domicile) at the time of concluding of the contract.

With reference to the evidence gathered, the court determined that the parties to the proceedings concluded on 23 January 2007 a written contract of sale in the course of their business. The contract was concluded subsequent to the written purchase order placed by the [Buyer] on 19 January 2007 via e-mail. By concluding the contract, the [Seller] bound itself to deliver the goods to the [Buyer] and the [Buyer] bound itself to pay the purchase price for the goods delivered. The [Seller] fulfilled its obligation when delivering 300 bags, as evidenced by the bill of lading no. 05600006 of 23 January 2007 and the [Buyer] approved the delivery by its signature and seal. After the [Seller] handed over the goods, the [Buyer] was obliged to pay the purchase pricefor the goods delivered within fourteen days after drawing of the invoice, as was agreed in the contract. The court found to be proved that the parties to the contract agreed on the unit price of 200.- Sk and therefore the total purchase price for 300 bags delivered shall be 60,000.- Sk, as it was billed by the[Seller] in invoice no. 2005600006 of 23 January 2007, due on 6 February 2007.

The [Buyer] did not provide any evidence that it paid the purchase price and therefore the court upheld the claim of the [Seller] amounting to 60,000.- Sk as the purchase price for the delivered goods.

The court ruled on the reimbursement of the costs of the proceedings with reference to sec. 142 part 1 CPC and granted to the [Seller] full reimbursement of its costs, as it was successful in its entire claim.

Under section 160 part 1 CPC, the [Buyer] is obliged to fulfil its obligations from this judgment within three days after it comes into force.

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

District Court Banska Bystrica, 22 February 2008.

Mgr. Miriam Kamenska, Judge