Data

Date:
15-12-2022
Country:
Paraguay
Number:
217
Court:
Tribunal de Apelación en lo Civil, Comercial y Laboral – Primera Sala
Parties:
Mario Jorge Gavilán García v. Melina Maciel Bobadilla and others

Keywords

CONSTRUCTION CONTRACT - BETWEEN PARAGUAYAN INDIVIDUALS - UNIDROIT PRINCIPLES AS A MEANS OF INTERPRETING OR SUPPLEMENTING APPLICABLE DOMESTIC LAW (PARAGUAYAN LAW)

ESTABLISHED PRACTICE BETWEEN PARTIES - RECOGNITION OF ITS BINDING CHARACTER - REFERENCE TO ART. 1.9 UNIDROIT PRINCIPLES IN THE ABSENCE OF AN EXPRESS PROVISION OF THE APPLICABLE LAW

Abstract

In the present case, Claimant filed a claim against Respondents seeking the recognition of a credit in his favor and demanding the payment of a debt that resulted from the execution of a construction contract.

The First Instance Court recognized the credit only against the Second Respondent, who was the contracting party, and not against the First Respondent, who was the owner of the premises.

The Second Respondent appealed the first instance ruling.

The Appellate Court found that the agreement between the Claimant and the Second Respondent was verbal and never formalized in writing, since the construction contract was signed only by First Respondent on whose premises the construction was conducted.

In the opinion of the Court, while the contractual relationship between the parties had been acknowledged, the issue to be decided was if the Claimant was paid in full for the works carried out as agreed by the parties. As there was no written contract, the Appellate Court reviewed the parties’ conduct throughout the contractual relationship

In affirming the relevance of the parties' conduct in order to interpret the agreement, the Court referred to the UNIDROIT Principles, namely to their Art. 1.9 (wrongly indicated as Art. 19) and to its official commentaries, and stated that a practice established between the parties to a particular contract is automatically binding, except where the parties have expressly excluded its application.

Subsequently, the Court of Appeal, after having determined that Claimant had failed to demonstrate that he requested payment to the Respondents in consistency with the practice established throughout the contract, concluded for the non-existence of the credit in favor of the Claimant.

Therefore, the Court granted the appeal and revoked the first instance ruling which recognized the Claimant's credit against the Second Respondent.

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