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CISG-online number
6608
Case name
5 seconds timers case
Jurisdiction
Poland
Court
Sąd Rejonowy w Gdyni (Local Court Gdynia)
Chamber
VI Wydział Gospodarczy (6th Chamber for commercial matters)
Judges
Justyna Supinska (Sole judge), Dorota Moszyk (Court Secretary)
Date of decision
16 February 2018
Case nr./docket nr.
VI GC 274/16
Claimant 1
Respondent 1
Seller 1
Buyer 1
Category of goods
89: Miscellaneous manufactured articles, not elsewhere specified
Goods as per contract
45,000 "5 seconds timers" (made in China, for use in the children's game "5 seconds")
Price
41'310.00 USD (U.S. Dollar)
CISG applicable
no, requirements of Art. 1(1) not met
(Domestic) law applied in addition
Polish law
CISG provisions also cited
Art. 74
Non-provision-specific issues addressed
Status of Hong Kong under the CISG (1997–2022)
Full text of decision 1
by Ulrich G. Schroeter
The present case, decided by a Polish Court of first instance, concerned a sales contract concluded in 2015 between a Polish buyer and a seller (apparently) from Hong Kong. After the buyer had ordered electronic goods (45,000 pieces of a "5 seconds timer" for a children's game), he attempted to cancel the contract (because, as the Court determined, he had found more suitable goods for a cheaper price elsewhere). The Hong Kong seller sued for damages, basing his claim on Art. 74 CISG.
In determining the applicable law, the Court turned to the Polish Foreign Ministry and requested information about the Hong Kong SAR's status under the CISG, and about any bilateral treaties between Poland and China that may extend to Hong Kong. In its response, the Polish Foreign Ministry stated that China had not extended the CISG to the Hong Kong SAR and that it therefore currently did not apply to the relationship between Poland and Hong Kong, and that no applicable bilateral treaties existed either. The Court therefore held that the CISG could not be applied (although the Hong Kong seller had relied on it).
The Court therefore turned to the EU's Rome I Regulation and its Art. 4(1)(a), which generally declares the law at the seller's seat to govern a sales contract (which would have been Hong Kong law). However, the Court then applied the "escape clause" in Art. 4(3) of the Rome I Regulation, arguing that the present case was manifestly more closely related to Poland than to Hong Kong. (The Hong Kong seller agreed.) Accordingly, Polish domestic law was applied in deciding on the merits of the dispute.