Dorin, Samuel c / Correo Argentino.
Summaries:
1 .- The armed robbery perpetrated by third parties may have the scope of force majeure but the burden of proof of "casus" rests on top of who alleges it, fitting add r and fortuitous event force does not require, among other elements, that the event is unforeseeable or unavoidable or inevitable, meaning that the situation is not ultimately attributable to the debtor by way of guilt. If this is true about the robbery at gunpoint, more so the criterion is applicable to common theft, but does not appear in the species demonstrated the unreality of theft, let alone the unpredictability of the event (for nothing exotic in our country unfortunately), then connected to this chapter there is no other evidence other than the certificate fs.36 complaint.
2 .- To determine the compensation for damages is not for meeting the limits established by regulatory standards of service, if the evidence offered is the existence of further injury. This is because the provisions of that decree can not prevail over the whole economy and the specific rules of common law relating to tort law, so that if the victim shows that the cold damage of greater magnitude, it must be compensated.
In Buenos Aires, on the 20th day of November two thousand and one meeting under the Judges of Hall 2 of the Court of Appeals in Civil and Commercial Federal, to find common ground on appeal " DORIN, SAMUEL C / CORREO ARGENTINO s / COLLECTION OF WEIGHTS. "regarding fs.205/208 Case, the Court established the following question to be resolved:
Fits the original ruling right? Practiced
the draw was that the election should be held in the following order, doctors Chamber judges of Marina Mariani Vocos Vidal and Eduardo Conesa.
to the question, Mrs. Dr. Marina Chamber Judge MARIANI OF VIDAL said
1 .- Correo Argentino SA received from Mr. Samuel Dorin, on 02/04/1998, for transport from Mercedes (Corrientes province) to the City Neuquén, three parcels 05.784.932.4 identified as CP, CP and CP 05.784.933.8 / 05.784.934.7, which were delivered to Miss Mary Veronica Silveri (conf fs.33 and original work in the envelope of classified documents found with the letter "L")
The goods never reached their destination, which is why Mr. Samuel Dorin, promoted this lawsuit against the Post-whom he considers responsible for the failure to deliver the packages on arrival ", requiring the payment of $ 5,000-value -transported goods, plus interest and costs (acc. fs.39/4l row).
resisted the attempt by the emplacement, fs.205/208 Case (clarification of fs.212) gave rise to the claim, condemning Correo Argentino SA Samuel Dorin pay the amount of $ 3,500, with interest from the date of notice of claim, at the rate received by the Banco de la Nacion Argentina in their regular operations off to thirty days, more legal costs.
both parties appealed. The plaintiff expressed grievances fs.230/231 row., Which were answered in fs.237/238. The defendant did the same to fs. 232/235 row., Which merited no reply (acc. fs.239). Median resources also 'fees (see fs.211 and 219), which will be addressed by the Board as a whole at the end of the agreement.
II .- I shall first of the issue of liability, which was foisted by the judge to Correo Argentino SA
The defendant relied, for free, the attendance of an alleged accident or force majeure, set by the theft of truck in carrying parcels (conf complaint certificate of fs.36). Based his excuse in the provisions of arts.30 and 31, inc. 5 of the Law Post-Law 20,216. Complaints
that the defendant has appealed the lower court to decide the Commercial Code provisions relating to road and claims that it is subject to the specific law, that is the Post Office Act.
Mas-regulated than that in that body of law is the transport of pieces of mail and parcel post (specifically, in several articles of the law to him under the name of "transport" y. gr. Arts.5 °, 9 ° 18 incs. 4, 6, 7 °, etc., and the same happens in the Explanatory Memorandum that accompanied the respective Project) - appellant not explain how the game specific rules would lead to a solution different from that reached by Judge.
In fact, the defense in which she took shelter Correo Argentino SA was the fortuitous event or force majeure, looked in Art.31, inc. 5, of Law 20,216. And since she does not define what is meant by accident or force majeure, be invoked with the rules and principles of common law relating to these institutes.
The Board has since admitted that the former armed robbery perpetrated by third parties may have the scope of force majeure (acc. 4255 because of 20/07/1976 and appointments). But it also warned that the burden of proof of "casus" headrest who claims (art.l72, Zip. of Commerce, as of 4/21/1977 5167 cases, 704 of 12.04.1981, 7060/93 of 3.6. 3915/91 of 11.11.1994; 21.419/96 of 20.5. 97) and, as the thesis of an exception to the general principles that caution must be full and conclusive and the assessment of facts made to stringent criteria (acc. this room, ANAYA-PODETTI Cite causes, U., "Commercial Code and complement Laws Annotated and Concorde, t. III, no 60, FERNÁNDEZ, R. "Commercial Code Reviewed ', ed.1970, tI, vol.1, so add that block fortuitous event and force will not require , among other elements, that the event is unforeseeable or unavoidable, or inevitable, meaning that the situation is not ultimately attributable to the debtor by way of guilt (art. art. 176, Cod. of Commerce, the Board cited causes das, FERNÁNDEZ, R., op.cit., p. .. 515/516).
If this is true about the robbery at gunpoint, more so the criterion is applicable to common theft, without qualification, such is the present scenario, given that the fs.36 complaint made by the driver the truck that was responsible for the transport of parcels (conf note of the defendant that looks to fs.35) only speaks of "theft."
not appear in the species demonstrated the unreality of theft, let alone the unpredictability of the fact (For nothing exotic in our country, unfortunately), then connected to this chapter, no other evidence other than the certificate fs.36 complaint.
result, the defense can not be accepted.
III .- The defendant also seeks to limit the economic translation of his responsibility on the basis of Article 30 of dec.151/74, regulations of the Postal Law.
The question here is has been resolved by this Court in the case 1785/97 of 6.9.2000 in which it stressed that "to determine the compensation for damages is not for meeting the limits established by regulatory standards of service if the evidence offered is the existence of further injury. Because the provisions of that decree can not prevail over the whole economy and the specific rules of common law relating to tort law, so that if the victim shows that the cold damage of greater magnitude, it must be compensated. IV .- Subtract
consider the grievances of the parties concerning the amount of compensation to pay the court orders.
felt that the trial judge did not appear finishing accredited content missing parcels. However, based on the collected items in the file, put into practice the right enshrined in art. 165, in fine, and valued Procedure Code impairment in the sum of $ 3 500.
is true that the invoices and packing slips, copies of which act to fs.24/26 (made unilaterally by the actor) illustrated on a number of goods that satisfy the order form added to fs.31/32, have been released 03/31/1998 Neuquén. It is also true that the signer of that note recognized (conf testimonial fs. 127/128, at 10. The witness said that his responsibility is not the record "release 31/3/1998" spelled out in the note) and that there is almost total agreement between the note and fs.24/26 documents. Ms. Silveri stated further that the items ordered in the note arrived fs.31 your business a second chance because, as Mr. Dorin manifest his father (business administrator that the goods were intended), the shipment sent the first time had been stolen (fs.127 row., to the 8th).
However, although the elements are alluded to assume that the characteristics relied merchandise was sent in packages that were in the stolen truck (Arg art.163, inc.5 ° Procedure Code) do not constitute direct evidence of reliable those contents (which might have shown, for example, with the statement he had conditioned the merchandise in parcels)
regard to the expertise of fs.138/l39 row., "only informs about the wholesale prices of the goods which the plaintiff claimed the packages contained, but did not comment, nor could it, considering the nature of expert-to-work near the intrinsic origin of the claim .
In so far said that the judge was right to resort to the provisions of art. 165, in fine, the ritual law, to set compensation prudently, mindful that the damage has been accredited (it is not conceivable, from another angle, that three parcels to send someone away with zero meaningful content or zero value: conf . this Court, because of 05/11/1999 1.714/97 and appointments), but not its exact amount. And in that sense, I think was right to undertake the valuation, without the plaintiff can complain if you do not get everything it had requested, as this has been due only to the designated evidentiary shortcoming, the product of their own discretionary behavior.
V. - For the above reasons, I propose to confirm the original ruling, as decided and was the subject of grievances. Each party shall bear its own costs of appeal, as the expired (Arg art.68, first paragraph, Code 1 / Procedure). It's my vote. Mr. Judge
Dr. Eduardo Vocos Chamber Conesa, for reasons similar to those given by Mrs. Dr. Marina Chamber Judge Mariani Vidal, endorses the conclusions of their vote. Thus ended immediately. MARIANI MARINA DE VIDAL - EDUARDO Vocos CONESA -.
Buenos Aires, November 2001 .-
and Vista: it is therefore the agreement above, is confirmed as the original ruling was the subject of grievance. Each party shall bear the costs on appeal of his application (art.68, first paragraph, of the Code of)
Given the nature of the case, the amount of the sentence (capital and interest, see the whole "La Territorial de Seguros SA c / STAF ", of 09.11.1997) and the extent, quality and importance of the work undertaken, confirms' fees for professionals involved in the plaintiff, Dr. Pedro Bashkansky and Felix G. Dorin (Arts.6, 7, 9, 19, 37 and 38 of Law 21,839, as amended by 24 432)
In view of the nature of the issues on which the expert had issued Orchid Angela Massini appraiser and the institution its opinion, confirm their fees (Arg art.519, third paragraph, 20,094 law applicable by reason of analogy)
On appeal, regúlanse: a) in the application of the plaintiff taking the Termimar tariff ONE HUNDRED SEVENTY FIVE PESOS ($ 175) fees and Dr. Paul Clusellas HUNDRED TWENTY PESOS ($ 125) and fifty pesos ($ 50) the doctors' and Felix G. Peter Bashkansky Dorin, in that order, and b) in respondent's TWO HUNDRED FORTY PESOS ($ 240) the emoluments of Dr. Paul Clusellas (art.14 of the current tariff).
leave evidence that the third Investigation Board of the Board is vacant (art.109 of the Regulations for the National Justice). Register, report and return. MARIANI MARINA DE EDUARDO VIDAL .- Vocos CONESA
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