|
The initial hearing for a suit filed against Holland
Car Plc for the non-delivery of a car to Gashaw
Abebe were presented at the Federal First Instance
Court, Yeka District, on Wednesday, March 23, 2011.
Gashaw is alleging non-delivery of an Abay
Executive, a Holland assembled car, and suing the
company for costs he claims arose from it.
On September 15, 2009, Gashaw had signed a contract
for the delivery of the car with Holland Car, which
was established in 2005 with a capital of 11 million
Br. However, Holland failed to deliver the car as
per the agreement because of a foreign exchange
shortage beyond the company’s control, i.e. force
majeure, argued Mesfin Getachew, the lawyer for
the defence.
The contract clearly stipulates that the specified
penalties for non-delivery, based on Article 1890(2)
of the Civil Code, prohibits a plaintiff from
demanding both the implementation of the contract
and penalties for non-delivery on the contract,
Mesfin elaborated.
The plaintiff is, therefore, entitled to penalties
as specified in the contract but not to the
implementation of the contract, argued the
defendant, which as established by Tadesse Tesema
(Eng), a Dutch citizen of Ethiopian origin, and
Trento BV Engineering, a company based in the
Netherlands.
The plaintiff failed to substantiate the benefits he
had lost and the problems encountered by his dairy
business due to the non-delivery of the car, which
would not have been suitable to his business,
Holland alleged.
The contract stipulates that the plaintiff could
have asked for the delivery of the car for up to
five months, until February 12, 2010, since the
initial payment of 50,000 Br was made on September
15, 2009, the defence lawyer claimed. However, the
plaintiff had written a warning letter only on
January 29, 2011, 11 months later than the
stipulated deadline for the enforcement of the
contract, the defence alleged.
These stipulations release the defendant from
fulfilling the implementation of the contract, and
from paying the penalties the plaintiff is claiming
for, Mesfin argued.
The purported costs incurred by the plaintiff, whose
main residence is in Gonder Town while he frequently
travels to Addis Abeba, was preventable since the
inquiries he had made into the contract could have
been answered by phone, Holland claimed.
There is no proof about the additional costs he
incurred, due to not having a car, for food and
business related activities, no clear date on the
receipts for accommodation, as well as no
relationship between the contract and the costs the
plaintiff incurred while travelling between the two
cities, he argued. Aside from possible payment for
the trial costs, Holland Car is not liable for the
other costs the plaintiff claimed, the defence
concluded.
In response, Gashaw, represented by Tigabu Gete,
stated that the plaintiff, who trades in dairy
products, believing in the eminent execution of the
contract and the delivery of the car, sold his own,
on February 12, 2010. However, after repeated
requests, he never received the new car from Holland
Car, even after sending a warning letter.
The plaintiff wants the court to order the delivery
of the car as per the contract and reimburse him a
total of 53,422 Br, which he claimed as the amount
the absence of the car cost him. Should the car not
be delivered, Gashaw would accept 268,372 Br, which
includes the 184,000 Br the car costs according to
the contract.
Proceedings were adjourned until April 20, 2011. |
