Νομολογία

  • Στοιχεία της υπόθεσης
    • Εθνικός αναγνωριστικός αριθμός: Court decision number 1703 / 2013 (Α2, Civil Cases)
    • Κράτος μέλος: Ελλάδα
    • Κοινή ονομασία:link
    • Είδος απόφασης: Απόφαση του Ανωτάτου Δικαστηρίου
    • Ημερομηνία απόφασης: 26/08/2013
    • Δικαστήριο: Άρειος Πάγος
    • Θέμα:
    • Ενάγων: "ΤRADE TANKERS INC"
    • Εναγόμενος: "AVIN INTERNATIONAL BUNKERS SUPPLY SA"
    • Λέξεις-κλειδιά: conformity with the contract, omission, passing of risk, poor quality, replacement
  • Άρθρα της οδηγίας
    Consumer Sales and Guarantees Directive, Article 2, 1. Consumer Sales and Guarantees Directive, Article 2, 2. Consumer Sales and Guarantees Directive, Article 2, 2., (a) Consumer Sales and Guarantees Directive, Article 2, 2., (b) Consumer Sales and Guarantees Directive, Article 2, 2., (c) Consumer Sales and Guarantees Directive, Article 2, 2., (d) Consumer Sales and Guarantees Directive, Article 2, 3. Consumer Sales and Guarantees Directive, Article 3, 1. Consumer Sales and Guarantees Directive, Article 3, 2.
  • Περίληψη
    (1) The provision of the good from the seller to the buyer, without the agreed properties and with actual defects establishes liability of the seller for non-performance of the contract (strict liability regardless of fault) and grants to the buyer the right to ask for the repair or replacement of the good with another one, free of charge. The above applies after the transfer of risk to the buyer (i.e. after the delivery of the good to the buyer and the appearance of the defect).

    (2) Moreover, if at the time that the risk passes to the buyer, the good misses any of its agreed properties, the buyer has the right, instead of exercising the rights of repair or replacement, to ask for the reduction of the price or the withdrawal from the contract as well as to seek compensation for non-performance of the contract and for any other additional damages. The same applies in case that the defect is due to the seller’s fault.
  • Πραγματικά περιστατικά
    The plaintiff purchased from the defendant 1,000 metric tons of fuel, type HFO (Heavy Fuel Oil). The required specifications of these fuels, were included in the order form, as essential conditions thereof. After the vessel has been supplied with the fuel, the plaintiff proceeded to a chemical analysis of the fuel to verify their quality and their suitability for the vessel’s engines. However, when the plaintiff received the preliminary analysis of the quality of that oil he found that it was not appropriate and did not meet the required standards for the vessel’s engines. On the same day, the plaintiff sent the analysis to the defendant and requested from the defendant to refund the amount paid for the purchase of the fuel. At the same time he reserved all his rights against the defendant for any damages that may arise in the main or auxiliary engines of the vessel due to the poor quality of the fuel, which made the vessel unseaworthy. So, given that the vessel became inappropriate for traveling in the sea, the plaintiff was obliged to cancel all communication and negotiation for chartering the vessel. The defendant fully recognized that the fuel was not appropriate. Upon mutual understandings, it was decided that the most appropriate and acceptable but also necessary solution, according to the International MARPOL Convention, was to unload without delay the improper amount of fuel and to load new fuel in replacement, which meets all requirements. However, the defendant delayed unjustifiably to replace the unsuitable fuels. So, this had as a result that the plaintiff to refrained from signing time charter contracts with clients in two specific occasions. Both parties filed a claim (joined cases). Decision no. 2600/2009 of the court of First Instance of Piraeus was issued and then the decision no. 572/2011 of the court of Appeal of Piraeus. The latter considered the plaintiff’s claim as vague on the grounds that the funds were not specified. The plaintiff filed an appeal against decision no. 572/2011 before the Supreme court.

  • Νομικό ζήτημα
    (1) When can a buyer request from the seller to repair or replace the good bought with another one, free of charge?

    (2) What rights does a buyer have when, at the time of the passing of the risk, the good misses any of its agreed properties?

  • Απόφαση

    In case that a good lacks any of its agreed properties at the time that the risk passes to the buyer or in the case of actual defect that is due to the fault of the seller, then the buyer is entitled to seek for additional compensation for non- performance of the contract as well as for any other additional damages to the extent that the compensation can cover additional losses that are due to the defectiveness of the good, but they were not covered by the exercise of rights of repair or replacement, reduction of price or withdrawal. So, the court ruled that the plaintiff may claim compensation for any damage (including both damage sustained and loss of profit) that were directly associated with the existence of the defect or the lack of the agreed property, i.e. the balance among the two values, the expenditure incurred on the efforts to repair the good, the loss of profit, the loss of any deprivation of use of the good and all expenses due to other reasons.

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  • Αποτέλεσμα
    The court had set aside the judgment of the no. 572/2011 decision of the court of Appeal of Piraeus and referred the case for further hearing to the same court composed by other Judges. Plaintiff’s appeal was accepted.