Case 1154: Limitation Convention, 1980 (amended text) 8; [10(1)]; 24; CISG 78
Slovenia: Višje sodišče v Ljubljani (Ljubljana High Court)
VSL sodba I Cpg 972/2010
13 October 2010

Original in Slovenian

Published in Slovenian:
http://www.sodisce.si/znanje/sodna_p...10040815253998

The court of first instance ruled that the defendant, a Belarusian company, was to
pay the claimant, a Slovenian company, a sum of 563.777,00 EUR resulting from
damages under a contract of sale.

The defendant appealed the decision to the appellate court, maintaining that the
claim for payment of the sum was prescribed because the limitation period of
four years under article 8 of the Limitation Convention had passed. It asserted that
the limitation period had begun on the date when it became possible to claim
performance of the obligation. Both Slovenia and Belarus are parties to the
Limitation Convention.

The court of first instance ruled that the defendant failed to demonstrate in time
when the individual limitation periods for the individual claims had begun and when
they had expired.

The appellate court upheld the judgement and added that, according to the
provisions of the Limitation Convention, the court cannot consider the expiration of
the limitation period on its own initiative since article 24 provides that the
expiration of the limitation period shall be taken into consideration in any legal
proceedings only if invoked by a party to such proceedings. Invoking the expiration
requires statements regarding the commencement and expiry of the limitation period
which the defendant had not presented during the proceedings in the court of
first instance.

In addition to the question of claim limitation, the appellate court also dealt with the
issue of interest. It found that the CISG was applicable to the contract between the
parties as they had their places of business in different contracting states. Regarding
the claimed interest, the court pointed to article 78 CISG, according to which a party
is entitled to interest if the other party fails to pay the price or any other sum that is
in arrears. It found that the CISG does not govern the issue of interest calculation.

It therefore used, under the conflict-of-law rules, the seller’s (Slovenian) law, whichcontains the principle of ne ultra alterum tantum on this issue.

Because the claimed
amount of interest exceeded the principal, the appellate court overturned the
decision of the court of first instance regarding defendant’s payment of interest in
excess of the principal.


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