Case 1035: CISG 35
Spain: Barcelona Provincial High Court
Reporting judge: Agustin Ferrer Barriendos

Previously heard by Sabadell Court of First Instance No. 6, 31 July 2008
27 January 2010

Complete text: www.uc3m.es/cisg/sespan83.htm, Aranzadi/Westlaw (114416)

Abstract prepared by Maria del Pilar Perales Viscasillas, National Correspondent

The case concerned the defects in a machine sold by one Spanish company to
another. The Court considered it in the light of the principle of aliud pro alio, which
it ruled arose from case law and constituted a remedy for the resolution of situations
of extreme injustice that might occasionally be created by modern contracts and to
which no reasonable solution could be found in the civil cases that had passed
through the Spanish legal system down the years. The Court thus deemed that it
should apply benchmarks for fairness that would avoid the need to endorse the
absolute authority of the aliud pro alio principle. A good benchmark, it held, could
be found in the references to conformity with ordinary use or a particular purpose,
as set out in article 35 of CISG, which constituted the current law of Spain in such
sale contracts and whose benchmarks — which were accepted throughout the world,
since they were contained in a Uniform Law produced by the United Nations — also
applied basically to consumer sales under Act No. 23/2003 on guarantees in the sale
of consumer goods, particularly as none of these legal texts contained rules directly
applicable in the case before the court.


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