- Fourth Federal Circuit Court of the Fifteenth Circuit
- Georgia Pacific Resins, Inc. vs Grupo Bajaplay, S.A. de C.V.
CONTRACT INVOLVING CARRIAGE OF GOODS (ART. 31(A) CISG) - OBLIGATION TO DELIVERY CONSISTING IN HANDING OVER THE GOODS TO THE FIRST CARRIER
A US seller of resins and a Mexican corporation entered into a commercial relationship. The relationship began after that the seller had sent a signed agreement to the buyer by fax, containing the general terms of their relationship. According to those terms, the buyer would place individual purchase orders via fax, and the seller would proceed to deliver the goods by placing them in the control of a trucking company in the US, for their transmission to the buyer in Mexico.
After buyer refused to pay the price, the seller filed suit. The buyer responded claiming that it had not signed the agreement, that it had not faxed the purchase orders, and that it had never received the goods.
The Court of first instance (First Court of First Instance, Tijuana, Baja California, 22.03.2006) found for the buyer, stating that the seller had not proven that the seller had tendered the goods, or that the buyer had received them. It therefore concluded that it was unnecessary to discuss the defenses raised by the buyer. The Court made no mention of the any substantive law provision.
On appeal, the seller raised the issue that the Court of first instance had failed to consider evidence it had exhibited. The seller also raised the issue that the Court had failed to apply CISG at the merits of the dispute.
The Superior Court (Second Chamber of the Superior Court of Baja California, 19/01/2007) ruled in favor of the buyer. In its decision, the Court found that there was not sufficient evidence that a contract had been formed and, therefore, CISG could not apply, for the Convention applies to contracts whose existence has been established.
At the Circuit Court Level, the seller filed a constitutional claim (amparo) claiming that rights under the Mexican Constitution had been violated by the Superior Court of Baja California for issuing a decision without taking into account the applicable law, i.e., its failure to apply the CISG to the substance of the dispute.
The Circuit Court (Fourth Federal Circuit Court of the Fifteenth Circuit, 9/08/2007) issued a decision in favor of the Seller, vacating the decision and ordering the Superior Court of Baja California to issue a new decision. The Circuit Court also added that the fact that the parties had not invoked the CISG was irrelevant on account of the principle of “jura novit curiae” (the judge knows the law).
In its second decision, the Second Chamber of the Superior Court (Second Chamber of the Superior Court of Baja California, 29/08/2007) again found for the buyer, but on this occasion stated that the invoices and waybills were mere copies and had therefore no legal value, and reasoned that the same result would follow also if it had applied CISG as ordered by the Circuit Court. However, in so doing, it did not cite any specific provision of the Convention.
The seller then filed its second constitutional claim (amparo) against the Second Chamber of the Superior Court of Baja California, claiming violations for its failure to render a judgment taking into account the evidence submitted, and to make a correct application of the procedural and substantive law.
The Circuit Court found that the Superior Court had violated the seller’s constitutional rights for failing to give due regard to the evidence submitted by it and found for the buyer. In so doing, it determined, inter alia, that the land waybills demonstrated that the seller had delivered the goods to the buyer by placing them with the first carrier for their transmission to the buyer (Art. 31(a) CISG).
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