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District Court in Nitra
3 October 2006 [27Cb/300/2000]
JUDGMENT IN THE NAME OF THE SLOVAK REPUBLIC The District Court in Nitra, deciding by a single judge, Mgr. Bozena Csibranyiova, in the case of Plaintiff M.F., [Seller], with its residence in N___, [Slovak Republic], represented by attorney JUDr. E.Z___, versus Defendant Ing. D.I. [Buyer], with its place of business in N___. [Slovak Republic], regarding payment of 87,800.- Slovak koruna [Sk] 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 87,800.- Sk with interest of 23 % annually on this sum for the period from 21 May 1998 until payment and reimbursement of costs of the proceedings amounting to 18,119.50 Sk within three days after the judgement comes into force.
REASONING
The [Seller] claimed in the proceedings by its action filed with the court on 15 June 2000 its right to payment of the sum of 87,800.- Sk with appurtenances and reimbursement of costs of the proceedings as a price for sale of African ostriches.
Upon the action, the court issued order to pay, rec. no. 2R Ob/742/00-17 which was challenged by the protest of the [Buyer] where it stated that it partially avoided the contract on 29 June 1998 and the [Seller] did not react to this act. The court therefore cancelled the order to pay and ordered hearing.
[…]
The [Seller] insisted on its action and stated that the [Buyer] did not notice any lack of conformity duly and on time and that the avoidance of contract was illegal. The [Seller] referred to sec. 428 of the Slovak Commercial Code and argued that the [Buyer] noticed lack of conformity of the goods belatedly. The [Seller] argued that the [Buyer] did not return the goods and gained benefit from it (the ostrich was hatching eggs and the [Buyer] acquired new-born ostriches).
The [Seller] stated at the hearing that it purchased two ostriches -- cock and hen where the contract prescribed the age of both ostriches-- two years. In June 1998, the [Buyer] avoided the contract, as it discovered that the hen was not at the age of two at the time of concluding of the contract. The [Buyer] discovered this lack of conformity approximately two weeks before avoiding the contract.
The court investigated that the parties to the proceedings concluded a contract of sale on 10 April 1998 in a written form where the [Seller] undertook to deliver to the [Buyer] two African ostriches and the [Buyer] paid the total purchase price of 180,000.- Sk excluding VAT, 80,000.- Sk with respect to the hen and 100,000.- Sk with respect to the cock. The [Seller] fulfilled its obligation under the contract and delivered the goods to the [Buyer]. The [Buyer] fulfilled its obligation only partially, as it paid only part of the purchase price for the cock and did not pay the price for the hen amounting to 87,000.- Sk (including VAT).
As it was already mentioned, the [Seller] fulfilled its obligation to deliver the goods, as it was approved also by the [Buyer], within the agreed period on 28 February 1998. In case the [Buyer] intended to claim lack of conformity of the goods, it should have notified the [Seller] of the lack of conformity within a reasonable time after its discovery. The [Buyer] was obliged to examine the goods in accordance with sec. 427 part 1 and sec. 455 of the Slovak Commercial Code. The court investigated that the [Buyer] partially declared the contract avoided / claimed its rights emerging from lack of conformity of the goods/ two weeks after discovering the lack of conformity of the goods. The court therefore examined whether such notice was given “within a reasonable time”. As it prescribed in the arbitral award no. 5713 from 1989 of the ICC Court of Arbitration in Paris, the same notion term in article 39 of the Vienna Convention is interpreted as meaning that the reasonable time presents a period of 8 days. The court considered this interpretation correct and applied it to the relationship in question and thereby determined that the avoidance of the contract /including also notice on lack of conformity/ was made belatedly -- two weeks after discovery of the lack of conformity as such period of time exceeded the period of 8 days. As the [Seller] was notified of the lack of conformity and the [Seller] opposed such notice, the court could not consider it valid under sec. 428 part 1 and 2 of the Slovak Commercial Code.
Instruction: An appeal against this judgment must be filed with the Regional Court in Nitra via this court within fifteen day from its receipt.
Mgr. Bozena Csibranyiova, Judge |
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