Strict liability for defective substrate in consumer relationshipResponsabilidad objetiva por sustrato defectuoso en relación de consumo

VOTE No. 1047-F-11 AGRARIAN TRIBUNAL OF THE SECOND JUDICIAL CIRCUIT OF SAN JOSÉ. Goicoechea, at nine hours nine minutes on the twenty-ninth of September of two thousand eleven.- ORDINARY PROCEEDING brought by AGROVERDE DOS MIL SOCIEDAD ANONIMA, legal identification number CED1, represented by its president with powers of an unlimited general power of attorney, Mr. [Name1], of legal age, married, merchant, identification number CED2, resident of Alajuela; against [Name2] CENTROAMERICA SOCIEDAD ANONIMA, legal identification number CED3, represented by its president with powers of an unlimited general power of attorney, Mr. [Name3], identification number CED4. Appearing are attorney Juan Manuel Ramírez Villanea in his capacity as lead counsel for the plaintiff, whose personal details are unknown in the record, and in his capacity as special judicial attorney-in-fact for the plaintiff, attorney Edgar León Díaz, of legal age, married, resident of San José, license number two thousand four hundred twenty-eight. Processed before the Agrarian Court of Alajuela.-

WHEREAS:

1.- The plaintiff Agroverde Dos Mil Sociedad Anónima requests that the judgment declare: "a) That part of the peat substrates delivered and duly paid for by the plaintiff came defective and unsuitable for the activity for which they were intended, as demonstrated by the evidence offered. b) Despite its repeated communications with the defendant in that regard, the defendant never assumed responsibility or provided any logical or scientific explanation regarding said failures in the product that was distributed to them. c) That for the aforementioned reasons, the defendant company be ordered to pay the damages (daños y perjuicios) caused, which shall be liquidated in the execution of judgment, since they have also suffered loss of image with their clients, which has also become an irreparable prejudice and damage. At folio 124, it clarifies that THE DAMAGE (DAÑO) consists of the loss suffered both of clients (market) and of commercial credibility of the plaintiff company, which must deal with competition and many other vicissitudes of this type of activity. It should be translated into 20% of the client portfolio. That the negative reputation cannot be changed, the comments spread by word of mouth. It values the damage at TWENTY MILLION COLONES. Regarding the CONSEQUENTIAL DAMAGES (PERJUICIOS), it indicates that if, out of a quantity of four million seeds, an average of five hundred thousand seedlings are lost per year due to problems with the defective material acquired, at a price of thirteen colones per seedling, the approximate sum of six million five hundred thousand colones is not received, which if multiplied by four years, gives TWENTY-SIX MILLION COLONES, just in terms of plant loss. That the compensations to clients for seed loss, only in the year 2003 from the month of July to the month of September, approximately amounted to a sum exceeding five and a half million colones. d) That the suspension of the simple executory proceeding and its effects be ordered, a proceeding corresponding to case file number EXPN1, as it refers to an invoice for a product that did not work; and which the defendant did not proceed to remove despite having been authorized to do so, and which is precisely the product whose deficiencies have led to the filing of this lawsuit. e) That the defendant company be ordered to pay both costs. f) That a writ be issued for the annotation of this ordinary lawsuit on the properties to be indicated", (folios 19 to 20, and 577 to 578).- 2.- The defendant company answered the complaint through the writ at folio 172 to 186, and raised the defenses of statute of limitations (prescripción) and expiration (caducidad).

3.- The trial judge María Carolina Hurtado García, in a judgment rendered at thirteen hours forty-eight minutes on the twenty-sixth of May of two thousand ten, resolved: "THEREFORE: In accordance with the foregoing, the defense of statute of limitations is rejected, and the defense of lack of right is upheld. The present ordinary lawsuit filed by AGROVERDE DOS MIL SOCIEDAD ANONIMA against [Name4] CENTROAMERICA SOCIEDAD ANONIMA is dismissed in all its aspects. The plaintiff company Agroverde Dos Mil S. A is ordered to pay the [Name5] personal and procedural costs." 4.- The plaintiff filed an appeal with express indication of the reasons on which it is based to refute the thesis of the lower court, (folio 596 to 626).- 5.- In the processing of the proceeding, the legal prescriptions have been observed, and the existence of errors or omissions capable of causing the nullity of the judgment is not noted.- Judge Castro García writes, and;

WHEREAS

I.- Evidence for a better decision (prueba para mejor resolver). Based on article 52 of the Agrarian Jurisdiction Law (Ley de Jurisdicción Agraria), as it is deemed unnecessary for the resolution of this appeal, the evidence offered for a better decision—to hear the statement of Engineer [Name6] offered by the plaintiff, and official letter DSFE 001.2010 offered by the defendant—must be rejected.

II-. The Tribunal shares the facts deemed proven in the appealed judgment, as they are consistent with the evidence presented in the proceeding.- III.- The facts deemed unproven are endorsed, as there is no evidence from which the contrary can be deduced.- IV- The special judicial attorney-in-fact for the plaintiff, in briefs submitted to the court on June 11, 2009 (folio 596), filed an appeal against the first-instance judgment (folio 577). He complains that he filed the present proceeding against the defendant by virtue of the existence of biological tests, microbiological, chemical, mineral, and physical analysis showing that the physical characteristics of the substrate that the defendant supplied to it were insufficient and caused it serious damages (daños y perjuicios), as well as loss of credibility for its family business. He reproaches that the defendant did not refer to the evidence provided, which, although the a quo judge endorsed it, she deemed insufficient to uphold the lawsuit. Specifically, he expresses the following points of disagreement: 1) Regarding proven facts. It was accredited: a) the plaintiff is dedicated to the production of vegetable seedlings (almácigos de hortalizas) for sale to small and medium-sized producers. b) from 2002 to 2005, products such as trays for developing seedlings and sacks with a mixture of peat and perlite for germination, brand VJ-PMP, were acquired from the defendant. c) according to the judgment, between 1999 and part of 2006, problems occurred in the germination phase of tomato, chili pepper, and lettuce seedlings. Incorrect dates, as the fact that one of the witnesses mentioned the year 1999 was due to an involuntary lapse; since the lawsuit does not refer to periods prior to 2002. He argues that such an error has given an advantage to the defendant company, even though the lawsuit does not mention a commercial relationship on those dates and none existed, and credibility has been detracted from the abundant technical evidence. He states it is clear that problems with the substrate existed, since the defendant acknowledged that it sent personnel without sufficient technical knowledge to replace poor-quality substrates with others. Regarding the merits of the case, he believes the evidentiary assessment is contrary to law. He alleges that not only his represented party was affected by the VJ-PMP substrate, but also two other owners of seedling nurseries who were carrying out the same activity as the plaintiff at that time, which was indicated in the judgment to the effect that said experiences are not relevant to the resolution of the case, which is contrary to legal logic, since if the product affected others, it highlights the problems of waterlogging, poor drainage, and root rot. He argues it is a real damage also caused to others who could not face the financial expense of a judicial process. He believes that for the judge to say that the plaintiff's lawsuit was based on conjecture is to stray from the results of analyses, expert opinions, and witnesses. He complains the damage caused was of legal relevance, deserves protection, and has not been repaired. There is a causal link not observed by the judge. He indicates a substrate with deficient physical qualities has various effects: waterlogging due to poor water drainage and poor aeration of the substrate, which leads to poor seed germination and root rot in the seedlings. The a quo judge deemed not to have sufficient evidence, which is to go against the current and convince oneself that what was observed is neither correct nor true. He contests the lack of assessment of and reference to the agronomic evaluation of the physical characteristics of the six batches of the VJ-PMP brand substrate, which resulted from the physical analyses of the substrates prepared by the INTA laboratory, which corresponds to documentary evidence “D” attached to the complaint brief and was not refuted. The result is the most convincing, conclusive, and irrefutable evidence, as the substrate in question was totally deficient, and its physical characteristics did not make it suitable for the use for which it was sold. He claims what had to be proven was that the supplied substrate lacked the physical conditions to produce the desired effects for which it was acquired, and he cites the agronomic evaluation table, not the specific dates on which the problems occurred, which the a quo judge pointed out. He emphasizes that the a quo judge showed subjectivity and lack of knowledge in resolving a technical case. He appeals that the judge found the certified copy of inspection minute book 31 of the Ministry of Agriculture and Livestock to be of interest, to try to undermine his lawsuit where he noted that even after the filing of the lawsuit, deficiencies in lettuce germination were observed. He explains the above by indicating that for a company dedicated to such a delicate activity as seedling production, which should be compared to the production of baby plants, making a drastic change in the planting material causes serious inconveniences, which takes time. He adds that, faced with the abrupt suspension of the supply of the defective product by the defendant, substitute material was sought, during which there was a period of adaptation and trial, with substrates provided by other companies, which necessarily produced germination problems. However, the problem was corrected, since the supplying company SPF Agroplásticos S.A. had a second substrate with larger granulometry (coarser particles that gave better drainage and aeration to the substrate). That point was clarified in the expert report (informe pericial) rendered by engineer Luis Fernando Avendaño. In said document, he made clear the state in which he found the seedling germination conditions and refers to said report and photographs numbered 1 to 15; which also reflect the storage and handling conditions of the duly certified seeds. He complains of disagreeing with the decision of the a quo judge regarding the lack of certainty, since with the expert evidence (prueba pericial), laboratory tests, and the testimonies and interrogatories themselves, one arrives at the reality of what happened. He proceeds to analyze the testimonial statement of [Name7], and in this regard, he believes his statement weighed against him when he indicated, contrary to what the judgment says, that the agricultural practices and the certified seeds came from the producing house, and the actions by the nursery were correct at all times. It is extracted that the recommendations made by technician [Name8], an employee of his company, did not solve the problem, since the real problem was in the physical characteristics of the substrate, and that the same agricultural practices have been maintained, which for the defendant are incorrect, but upon changing the brand of the substrate, the germination problems alleged in the lawsuit no longer occurred. It was accredited that the plaintiff company responsibly referred the matter to the competent entities in phytosanitary matters, namely the State Phytosanitary Service. In that body, it was demonstrated that the problem did not consist of the conjectures of the defendant when it alleged bad agricultural practices, seed quality, or water used. That company did not expect that the plaintiff would not settle for its explanations and would go to the State through the official entities in charge of the issue of plant health, and that the result of said investigations, carried out by internationally recognized methods and with competent professionals, would lead them to file this lawsuit. It is appealed that the judgment does not comment on anything in this regard and seems to disagree with the fact of having resorted to such bodies to find the cause of the problem, which was established without any doubt. He points out that the defendant mentioned it needed to request, from the supplying house of the substrate in Canada, an analysis certification, the result of which management was never made known to him and was not provided to the record. He argues that, although the plaintiff bears the burden of proof, this does not exempt the defendant from offering exculpatory evidence to refute the facts imputed to it. He alleges the defendant never provided proof of having made a claim to the supplying house for the problems its supply generated, and he questions the defendant's conduct in receiving this material and limiting itself to replacing it with another that also turned out to be ineffective, without any claim being made to clear its name in commerce or to recover its losses. The foregoing causes the appellant surprise, and the appealed judgment does not even mention this aspect. He states that with this evidence, it was clear that: a) until late 2004, the defendant, through Mr. [Name8], began taking notes of the numbers identifying the bales. These came by batch numbers, and for traceability purposes, work is done with substrates with that identification, which comes printed on the packaging, and therefore, at his discretion, he withdrew those he deemed defective and replaced them with others in better condition. The foregoing produced irregularity in the greenhouses, when the seeds germinated, which manifested in the form of patches. That is, some trays good, others half good and half bad, resulting in completely gray roots damaged by excess water accumulated due to the poor physical characteristics of the substrate. b) In the invoices issued by the defendant, the batch number acquired was not recorded, which is always indicated when acquiring, for example, seeds. c) No study was carried out by the defendant that would provide information on the substrate, which is confirmed by the testimony of [Name8]. It is indicated by the appellant that, with the interrogatory evidence, the reasons why they continued using the product despite the problems it presented are explained. In addition to this, he notes there was insufficient option in the market to acquire good quality product, which they found in the Klassman brand supplied by the company SPF Agroplásticos S.A., which did perform physical analyses of the substrate, and the change was made immediately, without modifying agricultural practices, and the results were optimal due to the quality product. He complains that having resorted to the competent state bodies supplied them with the technical basis that provides the foundation for the lawsuit. Regarding the statement of Ulises Jiménez Jiménez, he points out that in his capacity as a public official, he attested to the taking of samples in accordance with Law 7664 and its regulations, which could not be disproven by the defendant. He highlights that the tests were carried out in compliance with the law and that they were not related to pests or diseases, bad practices, or other conjectures put forth by the defendant as causing poor seed germination, post-germination root death, lack of uniformity, and loss of vigor. He indicates the INTA results demonstrate the poor physical quality of the substrate, and the agricultural practices were adequate. Regarding the seeds, he mentions that their use and handling adhere to the procedure governed by the National Seed Office, and they are duly registered, and engineer Luis Fernando Avendaño himself pointed out regarding them that a detailed log is kept, where their traceability is observed, with proper identification, to whom they were delivered, and it was ruled out that the seeds used presented problems. In this regard, none of the foregoing was sufficient for the a quo judge, without her indicating the reason for the rejection. Regarding the statement of [Name9], it is appealed that his decision demonstrated the problem was in the substrate sold and not in any other cause, as the tests that Mr. [Name8] was conducting to determine the origin of the problem were known to him. Such a witness explained the modus operandi of the nursery, without any aspect being objected to, and was emphatic that the substrate holds much moisture due to its fineness and the existence of irregular mixing of the product, and questions how a renowned Canadian company would supply a product of such poor technical quality. He attributes to the defendant that it did not come to the defense of its clients in the country in the face of the supply of a product of that nature, which demonstrates a poor quality control system before its packaging, and by not taking any measure against its supplier, it makes it responsible for the damages caused. He indicates the a quo judge downplayed this statement. Regarding the statement of [Name8], he argues he is impressed by the importance given in the judgment to the only witness offered by the defendant, in contrast to a group of professionals in phytosanitary matters, nursery owners, and results of technical tests, and even expert opinions that should have been accepted for meeting the requirements. Regarding this testimony, he points out: the defendant was aware of the problem, as that witness was the person the company sent when problems occurred. Said witness clarified he had experience in interpreting physical evaluations of substrates, for which he resorts to laboratories like Agrotec and Cafesa. He deems it transcendent that neither the witness nor the defendant provided any document showing that Mr. [Name8], faced with the plaintiff's problem, submitted the physical problem of the substrate in question to the laboratories he mentioned. The foregoing was impossible, as such laboratories are specialized in soils and lack methodologies for physical analysis of substrates. The defendant did not provide any evidence contradicting the results of the state entities through their laboratories. He complains his testimony could not disprove that the problems originated in the physical qualities of the substrate that produce a deficient and commercially unviable plant, and not in pathogenic elements or the State's bad agricultural practices. Regarding his testimony, the appellant argues that he tried to point toward those cited incorrect practices; however, the testimony of [Name9] demonstrates the contrary and could not be disproved. He points out that witness [Name8] indicated they informed the manufacturer of the problem, and the product was discarded without it being known who the manufacturer is, under what conditions it is produced, where the product was packaged, or the responses thereto; which should have been elicited from its distributor, the defendant company, within a logical commercial relationship. Said witness accepted that the product came with a low perlite content, which was what originated the claim; such physical quality translates into low quality, which was verified by the INTA analyses. The foregoing, he points out, was never understood by the first-instance judge. He indicates the testimony under analysis demonstrates the bad commercial practice of his employer and the deficiency in the physical quality of the substrate, and questions the reason for the judge's conclusion of not having sufficiently accredited that deficient quality. The testimony of [Name10], said witness was affected by the product sold by the defendant, as it led her company Almácigos y Semillas S.A. to bankruptcy, and it was impossible for her to face a judicial process. The witness argued she had to compensate each client she had for the poor germination of their plants, and she maintained good agricultural practices as she was supervised by the State Phytosanitary Service, and she pointed out that twelve days before the major problem caused, she proposed her company as a model for the use of said substrate, and this was done with the accompaniment of Mr. [Name8]. Her testimony refutes the defendant's defense when it indicates the cause would be bad practices, since the effects suffered in her nursery were the same as those of the appellant. She indicated that such a situation was accepted even in the presence of the defendant's partners, and she undertook the task of trying to locate the supplying house, about which she obtained no information. Regarding the testimony of [Name11], who was another user, he presented identical problems to the previous witness and the plaintiff and, like the rest, could not initially know the origin of the problem, and who also suffered serious economic consequential damages (perjuicios). He points out as important that the geographical location of his nursery was very distant from that of the appellant. The same thing occurs in the sense that the defendant company and Mr. [Name8] could not provide a response to his problem, which was solved when he began using a different substrate. He reproaches that the a quo judge assessed the evidence indicating she did so based on the rules of sound criticism (sana crítica), but against what was yielded by the technical and scientific evidence. Witness [Name12], who is a doctor in phytopathology and his advisor, demonstrated that there was permanent surveillance over the crops regarding diseases and that there was a problem of water saturation affecting them. His presence proves that the company was advised on phytosanitary matters. Said witness was clear that the origin of the effect was due to abiotic causes, that is, lack of oxygenation due to water saturation and not due to pathogenic agents (microorganisms). He clarifies this witness had a lapse when he indicated without malice that he had seen the use of the substrate since the year 1999, which is not correct, as the company did not have a commercial relationship with the defendant on those dates, which does not affect the merits of the case. They reject that this technical and scientific evidence had been disqualified, since considering that science and investigation lack reason for being. He considers the judgment is devoid of technical foundation. Witness [Name13], who works as a state phytosanitary engineer, is a technical witness who, during the period the analyses were conducted, was the person in charge of the greenhouses where such tests were developed, to observe if there were pests or diseases. This person explained the planting procedure in the greenhouses with the exclusion of third parties, as well as the fact that the results thereof were sent to the heads and the existence of the file. The result yielded is that no pests or diseases were observed, but rather mechanical damage or necrosis in the rootlets of the plants, and a physical and microbiological analysis was recommended to determine the origin of the damage, since the reason was initially unknown. His testimony could not be refuted by the defendant, which tried to make him contradict himself by showing him photographs of unknown origin, to which the mentioned deponent responded that the greenhouses did not have those conditions at the time of doing the tests. The planting test was carried out objectively solely by them and on two occasions, and the official one corresponded to the second. Neither did this evidence deserve faith from the judge. Regarding the expert report (informe pericial), he argues said evidence was requested by the defendant, was objective and conclusive, and was carried out by an expert who knows about substrates, seeds, and seedlings. Said report is prepared after the filing of the lawsuit and made it clear there were no germination problems, which the judge used to benefit the defendant's position. He argues the objective of the report was to determine if the substrate or the plaintiff's bad practices caused the damages, and this was determined, and the defendant could not refute the facts alleged in the lawsuit and having determined the noted deficiencies. He reproaches that the a quo judge only took parts of his statements, and they do not know how the judge wished to have the damages accredited, and she proceeded to ignore the most important and conclusive evidence. Regarding damages (daños y perjuicios), they argue how they would prove these aspects, given the stance of the lower court judge, who did not even deem the technical deficiencies of the substrate proven. By dismissing the lawsuit, these claims were denied, and they request that such items be declared in the abstract, and that it be in the execution proceeding where they are executed. [Name5]. He reproaches the award of such items and the damages (daños y perjuicios), when they have acted with absolute good faith. The damages (daños y perjuicios) have only been suffered by the plaintiff, and the defendant has not been harmed in any way. He ends by indicating that the nature of this matter is more technical than legal. As evidence for a better decision, he requests that engineer [Name6] be called, who was in charge of the technical interpretation of the physical analyses performed on the VJ-PMP substrates by the INTA laboratory, which is fundamental evidence in this process. The defendant, without filing an appeal, offers as evidence for a better decision official letter DSFE 001.2010 of January 4, 2010, visible at folios 653 to 668, and as an argument for its admission, it proceeds to attack said evidence, since it mentions that such reports rendered by the State Phytosanitary Service were not made for the purpose of serving as evidence in a judicial process, and in their preparation, they had no knowledge, precluding the possibility of intervening in the proof, and accepting that evidentiary means violates its right of defense and is illegal evidence because it comes from the State, among other aspects. It also offers certifications from a certified public accountant detailing the purchases of the substrate made by the witnesses, which were provided before the lower court judge and were rejected by the a quo judge at that opportunity.

V.- Firstly, this Tribunal observes that the judgment developed the resolution of the specific case considering it was a claim for damages under subjective liability (responsabilidad subjetiva) regulated in Article 1045 of the Code. In such a hypothesis, it is the injured party who had to prove the causal link (nexo causal) between the damage (daño) and the consequential damages (perjuicios) suffered. The foregoing is deduced from what is stated in the final paragraph of the seventh whereas clause of the judgment, when it literally reads: "With the review of the evidence produced, the undersigned deems it is not pertinent to impute to the defendant the germination problems in the plaintiff's nursery. In accordance with Article 317 of the Civil Procedure Code (Código Procesal Civil), the company Agroverde Dos mil S.A. bears the burden of proof in demonstrating the damage, the causal link, and the authorship of the defendant. In the instant case, it was not demonstrated clearly and conclusively that the substrate sold by VJ-Centroamérica S.A. was the exclusive factor that caused the claimed damages and consequential damages (daños y perjuicios). Consequently, it is not pertinent to impose on the defendant the duty to compensate for the same." (bold not in original). This instance does not agree with what was indicated by the first-instance judge in her judgment, since from the review of the complaint and the specific case, it is possible to determine that this is an action whose claim originates from a consumer relationship and from which payments of damages (daños y perjuicios) are claimed under strict liability (responsabilidad objetiva). In general terms, under such a scenario, the mere existence of the damage (daño) deems the damaging agent liable for having caused said damage, and from there, the obligation to compensate for the damages (daños y perjuicios) caused would arise. The burden of proof that such damage was not caused by virtue of the good or service acquired by the consumer and to disprove the causal link attributed by the plaintiff, falls on the defendant. As set out in proven facts 1 to 5, the plaintiff is a company dedicated to the production of vegetable seedlings (almácigos de hortalizas) and between January 2002 and March 2006, it purchased from [Name4] Centroamérica S.A. trays for the development of seedlings and sacks containing mixtures of peat and perlite for germination, brand VJ. During the commercial relationship, the plaintiff purchased 4513 sacks of peat and perlite mixture for germination called V-J Plug Mix Perlite. The plaintiff attributes problems in the germination of chili, tomato, and lettuce seedlings. Those it identifies with the presence of rotting of the rootlet and excess water in the growing medium.

The complaint alleges that these problems arose due to deficiencies in the physical qualities of the substrate acquired for seedling production, and therefore seeks to hold the defendant liable for the damages caused to its business. As can be seen from the complaint, it seeks compensation for damages caused by the product sold by the defendant to the plaintiff, to be used in the seedling production process. The defendant, for its part, answered (folio 174) acknowledging that the company Agroverde Dos Mil S.A. was its client for several years and purchased, among other products, the VJ-PMP substrate, which is a germination medium sold to a large number of companies. Said substrate consists of a mixture of sphagnum peat moss with perlite and other ingredients specifically designed for seed germination. As can be observed, a relationship exists between the disputing parties, in which the plaintiff company holds the status of consumer. Regarding strict liability (responsabilidad objetiva), this Chamber has held: "..the claimant need only prove that the damage exists and that it occurred as a direct and immediate consequence of the activity conducted.. No proof of fault or willful misconduct (culpability in the broad sense) is required, as the standard for imputation is objective. It falls upon the judge to examine in each case whether or not there is direct and adequate causation between the damage claimed (and proven) by the petitioner and the activity (whether by action or omission) conducted..." (Judgment No. 662-F-S1-2010, of 2:20 p.m. on May 26, 2010) and regarding strict liability (responsabilidad objetiva) in favor of the consumer and its scope, the First Chamber has held: "V.- Strict liability for risk in consumer matters. Regarding liability, two main branches can be identified: one subjective, which requires the concurrence, and consequent proof, of fault (culpa) or willful misconduct (dolo) on the part of the author of the harmful act (e.g., cardinal 1045 of the Civil Code), and another objective, which is characterized, essentially, by disregarding said elements, with the imputation of the damage being the central axis upon which the duty to repair is built. An example of the foregoing is found in numeral 35 of the Effective Consumer Defense Law (Ley de Defensa Efectiva del Consumidor), where the merchant, producer, or supplier shall be liable for those damages arising from the goods traded and the services provided, even when their conduct shows no negligence, imprudence, lack of skill, or willful misconduct. Likewise, it is important to consider, due to its influence on evidentiary matters, that the determining elements for the emergence of civil liability, whether subjective or objective, are: a harmful conduct (which may be active or passive, lawful or unlawful), the existence of damage (that is, an injury to a protected legal right), a causal link connecting the two former elements, and, in most cases, the verification of a criterion for attribution, which will depend on the specific legal regime. Regarding causation, it must be noted that it involves a case-by-case assessment made by the judge in which, based on the facts, the existence of a relationship between the damage claimed and the conduct carried out by the economic agent is determined. While various theories exist on the matter, the one deemed most consistent with the Costa Rican regime is that of adequate causation, according to which there is a link between damage and conduct when the former originates, if not necessarily, at least with a high probability under the specific circumstances affecting the matter, from the latter (in this regard, see, among others, rulings 467-F-2008 of 2:25 p.m. on July 4, 20085, or 1008-F-2006 of 9:30 a.m. on December 21, 2006). At this point, it is important to clarify that the proof of exculpatory causes (fault of the victim, act of a third party, or force majeure (fuerza mayor)) acts upon the causal link, ruling out that the conduct attributed to the defendant was the producer of the injury suffered. Regarding the various criteria for imputation, for the purposes of the present case, the theory of created risk is relevant, which was expressly included in the Consumer Defense Law. The objective framework favored by the law, as well as the application of the cited imputation criterion, emerge from a simple reading of the rule in question, which stipulates: 'the producer, supplier, and merchant must respond, concurrently and independently of the existence of fault, if the consumer is harmed by reason of the good or service, by inadequate or insufficient information about them, or by their use and risks. / Only he who proves he was not involved in the damage is released. / The legal representatives of commercial establishments or, where applicable, those in charge of the business are responsible for their own acts or facts or those of their dependents or auxiliaries. Technicians, those in charge of production and control are jointly and severally liable, when appropriate, for violations of this Law to the detriment of the consumer.' (emphasis supplied). Performing a detailed analysis of the rule just transcribed, a series of conditioning elements for its application emerge. Firstly, and from the perspective of the subjects, that is, who causes the damage and who suffers it, the application of this liability regime is contingent upon specific qualifications applying to them. Thus, regarding the former, they must be a producer, supplier, or merchant, whether natural or legal persons. Regarding the latter, the injury must be inflicted upon someone who participates in a legal relationship where they are situated as a consumer, under the terms defined in the referenced legal body and developed by this Chamber. It is required, therefore, that both parties form part of a consumer relationship, the object of which is the potential acquisition, enjoyment, or use of a good or service by the consumer. ....., given the existence of a consumer relationship, the specific case must be analyzed under the coverage of numeral 35 under discussion. Secondly, it also emerges from the precept under study that the legislator established a series of attribution criteria based on which the strict liability (responsabilidad objetiva) regulated by this cardinal rule can be imputed, within which the already cited theory of risk is found. Thus, this serves as a factor for assigning liability to the referred-to subjects. In essence, this theory postulates that whoever creates, exercises, or benefits from a lawful lucrative activity that presents potentially dangerous elements for others must also bear its inconveniences (ubi emolumentum, ubi onus, which can be translated as where the benefit is, there lies the burden). Two characteristics can be inferred from the previous statement: on the one hand, that the risk comes from an exploitation activity; and, on the other, being performed by a human being, so-called acts of nature are excluded. Concomitantly, it is important to make certain clarifications regarding the risks suitable for generating liability, since not every risk automatically implies its emergence. Today, life in society offers a myriad of risks of varying degrees and scope, to the point that it can be affirmed that it is impossible to find a daily activity that is exempt from them. Along these lines, the interpretation of norms cannot start from an absolute and total aversion to risk, which, as indicated, forms an integral part of societal coexistence and the technological advances integrated into it. The foregoing leads to the affirmation that, for the duty to repair to arise, the risk associated with the activity must present a degree of abnormality, that is, it must exceed the margin of tolerance that is admissible according to the rules of experience, which must be analyzed on a case-by-case basis by the judge. The second point requiring some commentary concerns the subject who becomes obligated by virtue of an activity considered dangerous. As already indicated, the criterion for imputation is, precisely, the created risk, which implies that the person to whom the damage is imputed must be in a position of control over it, that is, must be the one who conducts the activity or assumes the possible negative consequences associated with it, receiving a benefit from it. This benefit may be direct, which can be identified, among other things, with the income or emoluments received as consideration, or indirect, when the advantageous situation occurs in a reflexive manner, as happens with alternative mechanisms aimed at attracting consumers, and consequently, deriving an economic gain for its offeror. It is important to mention that different degrees of risk can be found in an activity, which must be managed by the subject who benefits from it, a circumstance that exerts a direct influence on the evidentiary burden incumbent upon them, since it is relevant for determining imputation in the sub judice. The foregoing, coupled with the existence of exculpatory causes, demonstrates that the legislation under discussion does not constitute an automatic transfer of assets. VI.- In the instant case, the plaintiff's claims were upheld by a majority by the Trial Court, which considered that the functioning of the electronic banking system presents such a degree of danger that allows the imputation of the damages inflicted to the Bank. ......... . As stipulated by numeral 35 of the Consumer Protection Law (Ley de Protección al Consumidor), there has been an injured party by reason of the service, which, upon being used (and in view of its risky nature), produced a significant injury to the party acting as plaintiff in the proceeding. Consequently, instead of an incorrect interpretation of the norm, the article has been given its just and correct meaning..... In addition to the foregoing, it cannot be overlooked that the emergence of liability depends on the existence of unlawfulness, and objective liability is not the exception; it must be determined, in this case, whether the affected party was under a legal obligation to bear the damage, as derived from the principle of patrimonial indemnity. This basic unlawfulness is identified, in the instant case, with the risk existing in the functioning of the service, as emerges from the evidentiary record itself, whose improper assessment is being claimed. For the reasons set forth up to this point, the arguments put forth by the appellant to the effect that the duty of safety is of a commercial and not a legal nature are unacceptable. As already noted, the performance of actions undertaken by a subject of law, which foreseeably have the potential to cause damage, carries with it the implicit duty to guarantee the safety thereof. In this vein, it is not a matter of the defendant proving the diligence it has exercised, as this is a feature of a subjective liability system.......VII.- In sum, in the specific case, the existence of an exculpatory cause, such as the fault of the victim, the act of a third party, or force majeure (fuerza mayor), was not proven. While the first is alluded to, there are no sufficient elements within the evidentiary record to affirm that the victim participated in the production of the damage. Had any of these circumstances been proven, it would be impossible to establish a causal link between the Bank's conduct and the injury, and therefore, no duty to repair could arise on the part of the entity. As already stated, the existence of an exculpatory cause implies that the cause of the harm can be linked to another subject, or, what amounts to the same thing, that the defendant was not involved in the damage inflicted. In any event, in the instant case, the existence of an exculpatory cause, or that the Consumer Protection Law is not applicable, was not proven, so that, given the existence of damage as a consequence of a risky service, under the terms of numeral 35 of the cited normative body, no improper application of the legal regime by the lower court judges is observed." (First Division of the Court of Cassation, No. 1098-09, of 2:45 p.m. on October 22, 2009). The ruling of that high Court, which is shared by this venue and finds its legal basis in Article 41 of the Political Constitution and Article 35 of the Effective Consumer Law (Ley Efectiva del Consumidor), in addition to what is specifically mandated for the activity conducted by the defendant company in the Phytosanitary Protection Law (Ley de Protección Fitosanitaria), which reads: "Article 32. “Those who import, manufacture, formulate, repackage, rebag, distribute, store, transport, sell, and apply chemical, biological, or related substances for agricultural use shall be obligated to compensate for the damages that, through their actions or omissions, they cause to agriculture, livestock, human health, and the environment.” For its part, on the issue of damage and risk, this Court has outlined some relevant doctrinal criteria: "V. Modern doctrine, for its part, has supported the objectification of liability, by including risk, apart from fault and willful misconduct, among the factors for imputability and legal attribution of damage. It has even been proposed to include other objective factors such as guarantee, equity, abuse of right, and excess of normal tolerance among neighbors. The damage is thus viewed not from the perspective of the author's act but from the position of the injured party, to ensure that all damage caused unjustly is repaired. From another point of view, fault has been separated from the unlawfulness of the act, giving a more important role to the latter. 'Once the equivalence between the unlawfulness of the act and fault was broken, conduct acquired an autonomous profile detached from the subjective profile of the agent's will, to become a simple means, cause, or connection criterion between a subject held responsible and a certain harmful event to be compensated.' (Franzoni (Massimo), La Actividad peligrosa, in Responsabilidad por daños en el tercer milenio, Abeledo Perrot, Buenos Aires, 1997, p.120). This is referred to as the Theory of Risk, which does not displace fault but complements it, and is summarized as the duty of one who creates a risk to indemnify the damage it causes to a third party. 'Risk is a cause of imputability when, due to the performance of certain causes and specific activities classified as dangerous, damage occurs. The damage under these circumstances must be compensated, not because its agent incurred in willful misconduct or fault, but because the legal order must protect the community from the conduct of dangerous activities, such that whoever performs them incurs liability if damage is caused by virtue of such performance… Liability derived from risk does not depend on the willful misconduct or fault of the agent but originates in the mere occurrence of damage resulting from the dangerous activity. This consideration brings with it a special evidentiary regime, according to which, by the mere exercise of the unsafe activity, the fault of the agent is presumed, exonerating the victim from the task of proving improper conduct. It is up to the agent to rebut the presumption…' ([Name14] , Hecho imputable dañoso in Del daño, Editora Jurídica, 1st Ed., Colombia, 2001, p.260). For other authors, 'the causal relationship is an element of the unlawful act and of contractual breach that directly links the damage to the unlawful act, and indirectly to the element of subjective imputation or objective attribution. It is the binding factor that causes the damage and the fault, or, where appropriate, the risk, to integrate into the unit of the act that is the source of the obligation to indemnify' (see [Name15] (), El perfil de la responsabilidad civil al finalizar el siglo XX in Responsabilidad por daños en el tercer milenio, Abeledo Perrot, Buenos Aires, 1997, pp. 24 to 26)." (Voto 541-F-11 Agrarian Court).

VI- This venue considers that both the plaintiff and the defendant company contribute to the development of a strategic and fundamental activity for the Costa Rican State, since they ensure the nation's food security and bear the responsibility of promoting the development of agricultural activity in such a way that the phytosanitary condition of plants is protected. For this purpose, nurseries (viveros), seed banks, seedling beds (almácigos), and companies of this nature are regulated and protected by the State through the provision of a specialized technical state structure, to assist and control their activities and avoid serious problems such as the spread of pests, protecting human health and the environment. To this end, a series of laws and regulations have been established aimed at setting forth technical and legal provisions of mandatory observance for producers. Within this normative framework, we find the Phytosanitary Protection Law (Ley de Protección Fitosanitaria) number 7664 and the repealed Nursery Regulation (Reglamento de Viveros) and the current decree number 33927-MAG, Regulation on Nurseries, Seedbeds, Seed Beds, and Budwood Banks (Reglamento de Viveros, Almácigos, Semilleros y Bancos de Yemas), published in La Gaceta on October 30, 2007. Said regulation, in its fourth article, establishes the obligation for these establishments engaged in the activities they regulate to be duly registered with the Nursery Program (Programa de Viveros) and to comply with the specific phytosanitary measures for each activity. Article 14 of this regulation establishes the power of the State Phytosanitary Service (Servicio Fitosanitario del Estado) to take samples that will be taken to the Official Laboratories for the diagnosis of the presence of pests or diseases, and phytosanitary inspectors are authorized for this purpose. This venue observes that the various grievances are related to the value given to the evidentiary elements by the trial judge, who did not consider it proven that the alleged damage of the problems in the germination of the seedlings was caused exclusively by the use of the substrate sold by the company [Name4] Centroamericana S.A. The appellant's disagreement lies in the fact that the trial judge did not consider the scientific, technical, and expert evidence to establish that the substrate caused the damage to the plants in the plaintiff's nursery during the period from January 2002 to 2006, nor the value given to the testimonial and documentary evidence. As was explained in the preceding recital, the exculpatory causes for the defendant company would be force majeure (fuerza mayor), fault of the victim, or act of a third party, which must be examined to determine if they are present and manage to break the causal link between the conduct and the damage claimed by the plaintiff. The defendant party has alleged in its favor the fault of the victim and the act of a third party, because, despite having accepted that the sold substrate had problems in its physical composition, it argues that the germination problems cannot be attributed solely to the substrate. They bring up that the plaintiff in its production process received seeds from its various clients, had irrigation problems, did not follow their technical instructions regarding the use of the product, and carried out poor agricultural practices in their nurseries. Grievances. Regarding the lack of assessment of scientific and technical evidence and establishing the causal link with it. The appellant complains that the trial judge indicated there was insufficient evidence to consider the facts proven. In the sixth recital of the judgment, it was reasoned that by virtue of the party testimony evidence, it was proven that the plaintiff company was supplied seeds by its clients. The commercial relationship between the parties from January 2002 to March 2006, during which the sale of, among other products, the substrate used in the plaintiff's production process occurred, was also considered proven. In the ruling, these conclusions are drawn from the documentary evidence of invoices and party testimony evidence. It was admitted by the defendant that 4513 sacks of said product were purchased. It is described that problems arose with the substrate that affected germination. In this regard, the judgment indicates that the specific dates on which such problems occurred, as well as the quantity of seeds and seedlings that suffered those circumstances, were not demonstrated. The lack of clarity regarding the specific date on which this problem began in the seedlings of Agroverde Dos Mil S.A. is recorded. The trial judge bases this conclusion on the testimony of [Name12], who indicated that such moisture saturation problems in the roots had been occurring since 1999. The trial judge also points out that the defendant did not sell the substrate to the plaintiff in 1999. It is also supported by the testimony of [Name9], who testified that the main problem arose from late 2004 to early 2005, which is when the problem occurred. The appellant complains that the date indicated by the witness [Name16] was due to a lapse, since there was no commercial relationship yet with the substrate seller in 1999, and the defendant itself indicates the dates when the sales occurred. This venue considers that such grievance cannot be accepted, because it was so recorded in the corresponding minutes and cannot be changed, since all parties to the proceeding became aware of those statements and the date mentioned by that witness was never objected to or requested to be corrected. What has been recorded is the existence of the commercial relationship between the disputing parties and that, upon the termination of the commercial relationship, the defendant company sold the plaintiff the substrate blamed for the germination problems, as was stated in the appealed ruling. The judgment indicates that it was also not proven that the damages alleged in the plants were exclusively due to the substrate. Furthermore, it was noted that it was accepted that the technical recommendations given for the use of the substrate by the manager of the selling company were not followed. The appellant complained in this sense that the judgment gave importance to the failure to demonstrate the dates of the damages, when the important thing was to determine that the deficiencies in the physical characteristics of the substrate caused the moisture retention problems, and inadequate drainage and aeration caused damage to the seedlings. It pointed out the lack of assessment of evidence "D" Physical Analysis of the substrate, the expert opinion, and the party testimony evidence. The appellant has no basis in this respect. To grant this claim, the causal link between the conduct and the inflicted damage must be clear. From the assessment of the physical analysis test of the substrate and the expert evidence presented in this matter, it has been demonstrated that the analyzed substrate had deficient physical qualities and that these could cause damage to plant germination. The trial judge is correct when she reasons in the judgment that the evidence was insufficient to prove that the damage was caused solely by said substrate and that it is not clear that the procedure applied by the plaintiff to the substrate at its facilities coincided with that developed by the State in its study. The foregoing is based on the plaintiff's acceptance in its complaint that the seeds used were provided by various clients and that the recommendations regarding modifying agricultural practices were not accepted from the defendant's manager, as they did not agree with them. On the other hand, as stated in the judgment, the samples analyzed were taken after the period claimed by the plaintiff, since the problems began in 2002, and the physical analysis evidence identified as D is from 2006. In addition, the expert evidence is from March 2009. While it can be determined that the product sampled by the State was deficient, it is not possible, for the reasons stated, to deduce that the damage to the plants was solely due to the substrate or that situations unrelated to the product did not intervene to affect the germinated plant. Regarding the evidence that was not given the value it supposedly had, the following are mentioned in the appeal: evidence A- Biological test performed at the Ministry of Agriculture and Livestock, State Phytosanitary Service (Servicio Fitosanitario del Estado), Phytosanitary Diagnosis, Greenhouses dated June 5, 2006 (folio 4), which reports on the result of sowing Lettuce Lactuca Sativa variety Gulf Stream in substrates provided by the company Agroverde Dos Mil S.A. in five lots identified with numbers 1975 to 1980. Said report concludes that the root damage present in the non-germinated plants "may be" a consequence of the physical or chemical characteristics of the substrate, since no damage caused by pathogens was observed on the foliar part, and it recommends a physical, chemical, and microbiological analysis of the substrates. In the Microbiological Analysis, Evidence B (folio 5) concluded that no pathogenic fungi or bacteria (causing pests and diseases in plants) were found. The Mineral Chemical Analysis of the organic substrates identifying the same described lots, Evidence C, was provided (folio 6). In what is pertinent, the Physical Analysis, Evidence D (folio 7), determined moisture retention. At folio 234, there is record number 21 of April 28, 2006, from the State Phytosanitary Service (Servicio Fitosanitario del Estado). It records that the official of that agency, Engineer Ulises Jiménez Jiménez, appeared at Agroverde Dos Mil S.A. to take the already mentioned laboratory analysis samples from INTA for the determination of the physical, chemical, and microbiological characteristics of the sampled lot. Indicating that the sampled lots are: 1212505, 1312505, 0912505, 1001505, 11011505, 1201505 and said samples are assigned the seals 1975 to 1980, describing which corresponds to each lot, and mentioning that they remain under the custody of MAG and that the sampled material corresponds to the substrate produced in Canada and sold by VJ- Centroamericana S.A. The defendant party presented with its answer to the complaint two trials that were conducted in 2002 due to the problems arising with plant germination. Namely, Trial 002-02: Sweet Pepper dated November 1, 2002 (folio 135). Said trial report is issued by the defendant company through its manager, Agronomist Engineer [Name8]. It describes a cultivation trial of sweet pepper seeds, which are duly certified, and in it, the cultivation of the seeds was carried out using the usual procedure of the defendant company. As observations and recommendations, certain practices that should be avoided were described, and no problem with the medium affecting the roots was found. Likewise, it was indicated that compaction with a roller negatively affects plants in their germination and pointed out the need to pre-moisten the substrate so that it has uniform moisture before filling trays, detailing the method to be followed; it was made known that stacking trays affects them in terms of compaction and that a 91% germination rate was obtained in good conditions. The observation was made that the producer uses growing media from various manufacturers. The recommendations tend to indicate that crops should not be compacted with a roller and that they should be moistened prior to filling the trays with the substrate in the manner explained therein and not applying irrigation afterward, as the producer was doing. A lettuce seed trial called 001:02 of November 1, 2002, was also presented (folio 146). A good germination result was obtained in it, and the same recommendations regarding the producer's agricultural practices were noted. The defendant requested that an expert opinion be rendered, which appears from folio 323 to 331, regarding which a hearing was held, and it was not objected to by any of the parties. From a reading of said expert evidence, it is denoted that its objective is: to determine whether the problems reported by Agroverde 2000 S.A. were caused by the characteristics of the substrate imported and sold by [Name4] Centroamericana S.A. or by poor handling thereof or another cause. The expert specified that the fieldwork was conducted between January 10, 2009, and February 13 of the same year at the plaintiff's facilities. The expert explained that he proceeded to visit other nurseries that conduct the same production process, interviewed representatives of the State Phytosanitary Service (Servicio Fitosanitario del Estado), and made other inquiries. He begins by indicating that the use of substrates for the production of vegetable seedlings is recent in the country, but is now a generalized practice. He cites the importance of good quality seedlings for any agricultural project, since the success or failure of said project will depend on it, and therefore, knowledge of the chemical, physical, and microbiological characteristics of that substrate is relevant, since the plant development plan in greenhouses is programmed accordingly. In the specific case, the physical characteristics of the peat (substrate) provided by the defendant are questioned.

He mentions that his claim is limited to studying the physical qualities of the substrate, since from the very results provided by the plaintiff, it is deduced that there are no problems with the chemical and microbiological qualities. The expert opinion indicates that the granulometry and the type of material determine the physical characteristics of a substrate, and among them it mentions: thickness index, bulk density (densidad aparente), particle density (densidad real), and moisture retention at different suction pressures, which are factors that allow calculating the porosity and the water:air ratio of the substrate. The expert report provides technical explanations of concepts regarding the composition of substrates and the beneficial or negative effects they produce on crops, and at this point it concludes that for a substrate to have good physical characteristics, it must meet appropriate and balanced conditions that allow for adequate plant development. The report describes that it was verified within the plaintiff's production process that the place where the seeds are stored meets the requirements. The expert describes the production process found in the defendant's nursery and noted that he observed the majority of the bales that supposedly caused the damage to the plants. He indicated having observed 19 sacks of the 34 that were indicated in the lawsuit that the plaintiff had in its possession. He cites 7 are from lot V-J 1001505, 8 from lot V-J 10101505, two from lot V-J 1212505, and two from lot V-J 1201505. It is important to mention that said expert reported that he visited the facilities of the Ministry of Agriculture and Livestock (Ministerio de Agricultura y Ganadería) and spoke with engineer Ulises Jiménez Vega, who was in charge of taking the samples at Agroverde 2000 S.A., and was able to observe the samples held in custody; subsequently, he appeared at the laboratory where the tests were carried out and found them in optimal conditions, and Engineer Edgar Vega Zúñiga, who was in charge of evaluating the seedling development process, provided him with a copy of the report he prepared for that purpose. He subsequently proceeded to visit the greenhouses of the State Phytosanitary Service (Servicio Fitosanitario del Estado) and recorded that the management conditions are acceptable. The expert proceeds to answer each of the questions that the defendant company requested be addressed, and from these, aspects of fundamental consideration for the resolution of this litigation are deduced. To the first question, he answered that it could have been possible that the cause of the plaintiff's problems was the substrate supplied. He explains that the above is deduced from the result of the physical analysis of the samples carried out by the MAG, which showed that more than 80% of the particles were smaller than 1mm and there was excessive moisture retention at three different suction pressures. He notes that the above is serious, as it causes deficient aeration of the plant, and as a consequence, poor root development. In the second question, he assures that a germination problem can occur in the same tray irregularly, in patches, or throughout the entire tray, because according to what the MAG analysis result showed, the samples have between 80% to 82% very fine material and between 18% and 20% of particles larger than 1 mm, and if these are poorly distributed within the bale, the mentioned germination situations can occur. The third question clarifies that the damage occurring in the germination trays where non-uniform development and in patches occurred was not due to contamination, because the laboratory results did not show the presence of pathogens. He also noted that the management of fertilizers, agrochemicals, substrate preparation, and irrigation systems is done safely and in accordance with technical guidelines, and regarding seeds, detailed controls and logs are kept where they are tracked by number, entry dates, packaging, and destination. The fourth question aims to challenge the reliability of the investigations carried out in the State Phytosanitary Service (Servicio Fitosanitario del Estado) laboratories, which used a 98-cell (cavidades) tray in its studies, and whether that constituted adding a new variable. The expert responds to this by stating that the number of holes contained in a tray is not a determining factor for obtaining the desired results in the test, because the important thing is to know whether the problem presented in the different sampled lots due to the supposed physical problems is repeated or not. Regarding seed quality, he is asked whether seed certification and quality were necessary before the tests. The expert indicates that a seed quality analysis could have been good to give greater scientific formality to the evaluation, but in this case it was not a determining factor, because according to inquiries, the seed in that period did not report vigor or germination problems. And he adds that when a substrate has physical problems, it is not important whether lettuce, tomato, or chili seed is used, because the same symptoms can appear using other seeds. The expert answers the question of whether it was necessary to describe the laboratory procedure in the investigation, affirming that it was not, because the professionals who prepare the medium are responsible for the results obtained. He adds that engineer Edgar Vega stated that the rigorous procedure for preparing the medium for each of the six samples and their replications was used. The expert, in the question identified as 4-4, indicates that the irrigation system used in the analysis of the State Phytosanitary Service (Servicio Fitosanitario del Estado) did not influence the germination percentage result, as it ensures proper moistening of the plants in the trays. The expert answers the next question, which refers to the moment in the germination process at which the root damage in the lettuce plants was evaluated, stating that such evaluations can be done on the third or fourth day, and having performed it six days later, as happened, was sufficient and adequate time to carry out such an evaluation. In the last question, the expert is asked whether a scientific method should have been used in the State Phytosanitary Service (Servicio Fitosanitario del Estado) investigation, including aspects such as the presence of a commercial sector representative. He responds that all research requires a scientific method, but an experimental design and statistical analysis are not an indispensable requirement in all cases. He added that this is one of those cases where it is not necessary, as two repetitions, as seems to have been done, are sufficient to have the necessary technical certainty and to analyze the results. It is mentioned that it would have been interesting to introduce another substrate, but that in this specific case, the analyses performed are irrefutable proof that the problem originated from the physical characteristics of the different lots of the questioned substrate, and regarding seed quality, he believes it does not influence the matter, because germination rates were good, and the aspects of irrigation, fertilization, and light do not disprove that the analyses were adequate. This Court considers, with respect to the expert opinion, the same point made in the judgment regarding the lack of proof in the case file of the causal link, which would require certainty that the problems arising in the plaintiff company's plants during the alleged period were exclusively a consequence of the substrate sold. This is because the noted problems began in 2002, and the expert provides an opinion on what was observed in the plaintiff's production process in 2009, and the agricultural practices from 2002 to 2006 could not be evaluated to determine the causal link solely with respect to the mentioned substrate. Similarly, it is also not possible to know the certification of all the seeds involved in the damaged plants, because in Mr. Soto Bravo's confessionary evidence (prueba confesional), it was accepted that the seeds came from various clients and "some" came certified (questions 3 and 4, folio 384), and that the agricultural practices recommended by the defendant's regent were not always followed, as they had different technical criteria (fifth and sixth questions, folio 389). Regarding the practices recommended in the cultivation process, the case file contains documentary evidence from folios 135 to 139, trials prepared by the defendant company in which it was recommended that the plaintiff make a change in some aspects, such as no compaction (compactación) with a roller and the pre-wetting of the substrate, which were not permanently adopted by the plaintiff. There is no clarity from the evidence in the case file that these practices were followed, and that the causal link of the damage to the plants is solely attributable to the substrate in question. The appellant argues that its claim is proven by the technical evidence; however, this Court considers that, although it is deduced from this evidence that the substrate samples showed a deficiency in their physical qualities that caused problems in the plants, the lack of knowledge of aspects such as the origin and quality of the seeds used from 2002 to 2006, or how the plaintiff prepared the substrate in those periods, influenced the negative germination results. The expert evidence and microbiological analyses showed that those samples did not present pathogenic elements; however, those were only some samples corresponding to the last periods of the commercial relationship in 2006, without knowing the state of prior conditions regarding seed quality and agricultural practices from 2002. The expert evidence has the value of demonstrating the conditions of the plaintiff's nursery in 2009, the state of the State's nurseries at that same time, as well as validating the correct agricultural practices for that moment, but it is not possible to deduce from this evidence the prevailing conditions during 2002 to 2006. The laboratory tests are irrefutable in their conclusions, but their value cannot prove that the damage to the seedlings was solely due to the conditions of the substrate supplied by the defendant company on the dates the damage occurred. Therefore, the grievance that the technical and expert evidence in the case file is sufficient is not admissible. Regarding the grievance concerning the confessionary evidence (prueba confesional) and that correct agricultural practices can be deduced from it, it is indicated that upon review (folio 387), it is deduced that aspects that could influence seedling cultivation (almácigos), such as seed quality, water, irrigation systems, and agricultural practices, were not studied at the time the damage occurred. The deponent accepted this in his answer to question eighteen. The appellant's grievance when stating that such aspects are not important, and that the only thing to consider was whether the substrate deficiency caused the claimed damages, is not admissible. This Court considers that to establish the causal link, it is necessary to verify that the mentioned aspects did not also contribute to the generation of the damage found in the analyses during the 2002 to 2006 period. Regarding the grievances about what the testimonial evidence proved, we also do not agree, because it is not considered that the analyses and procedures followed by officials Ulises Jiménez Jimenez and Edgar Julián Vega were disproven, or that the conditions of the State's greenhouses were not optimal; the results obtained are not questioned. What is considered is that such analyses are not sufficient to determine that the damage caused from 2002 to 2006 was solely due to the substrate, even if it had been proven that the substrate did not have an adequate physical composition. Regarding the statement of [Nombre9] (folio 432), although he gives a clear and compelling statement indicating that the germination problem was due to the substrate, he notes that the damage became aggravated in 2004, and that before 2005, material had been purchased from CAFESA but it was worse than that from [Nombre4]. Although he is noted to be a person with knowledge of his work, he assured that he has not received technical training and that regarding the amount of water needed, "he does it purely by eye." This Court agrees with the value given to this statement. Regarding the statement of [Nombre10], it is considered that his testimony in the specific case cannot detract from the ruling, because although he declared having suffered damage from that product, there is also no certainty about the conditions under which the nursery he mentioned he owned was managed. His grievance is rejected. This Court considers that the testimony of the person who acted as the defendant's regent, [Nombre8], was adequately assessed, because it was deduced from it that there were problems with the product, but that the agricultural practices of pre-wetting and compaction were not necessarily followed, which affects the proof of the possibility of contributory negligence on the part of the victim (culpa de la víctima) in the damage caused and breaks the causal link (nexo causal) that must be established. As indicated in the appealed judgment, the expert evidence was based on granting validity to the analyses of the State Phytosanitary Service (Servicio Fitosanitario del Estado), but it is not possible to deduce from it that the circumstances and practices of the plaintiff's nursery during 2002 to 2006 did not contribute to the generation of the damage caused to the germinated plants. Therefore, the appellant's reproach, when indicating that the evidentiary assessment made by the judge was made against scientific and technical evidence due to ignorance, is also not admissible.

VII- Damages (Daños y perjuicios). The grievances in this regard are not shared, because as this Court has not found the causal link that must exist for the lawsuit to have been successful, the rejection of the alleged damages and losses, which are the main claim in a process of this nature, is appropriate.

VIII- Costs (Costas). Given that the plaintiff-appellant was not ordered to pay damages and losses to the defendant, its grievance is rejected. Regarding costs, this Court notes that although the lawsuit was not granted, the plaintiff had cause to litigate, as it had a series of technical indications and scientific evidence that gave it grounds to file the lawsuit. Added to the above is that the substrate supplied by the defendant did have deficiencies in its physical qualities that could affect the germination of seedlings, which is deduced from the official State laboratory physical analyses and the criteria given in the expert evidence. Moreover, the expert himself stated that the technique of cultivating in substrates such as the one purchased by the plaintiff was a recently practiced technique in the country. Therefore, based on Article 55 of the Ley de Jurisdicción Agraria, and considering the existing evidence in the case cited regarding the product deficiency, the court resolves without a special order as to costs, and the judgment regarding the order of costs against the plaintiff must be revoked.

IX- For the reasons stated, the evidence offered for a better resolution, consisting of receiving the statement of Engineer Luis Fernando Avendaño, offered by the plaintiff, and official communication DSFE 001.2010, offered by the defendant, must be rejected, as both are unnecessary. The judgment must be partially revoked regarding the order for costs against [Nombre5], and instead, the court resolves without a special order as to costs. In all other matters subject to appeal, the judgment is confirmed.

THEREFORE (POR TANTO):

The evidence offered for a better resolution is rejected. The appealed judgment is partially revoked only regarding the order for personal and procedural [Nombre5] against Agroverde Dos Mil S.A. Instead, the court resolves without a special order as to costs. In all other matters subject to appeal, the judgment is confirmed.

[Nombre17] DAMARIS VARGAS VÁSQUEZ ALEXANDRA ALVARADO PANIAGUA PROCESO ORDINARIO PROMOVENTE: AGROVERDE DOS MIL SA CONTRA: V J CENTROAMERICA SA [Nombre18] / [Nombre19] + [Nombre19] Notification record Party or others Result Date Server (a) PLAINTIFF [Telf1] DEFENDANT [Telf2] d) That the suspension of the simple executory proceeding and its effects be ordered, a proceeding corresponding to case file number EXPN1, because it refers to an invoice for a product that did not work; and that the defendant did not proceed to remove it despite having been authorized to do so, and that it is precisely the product whose deficiencies have led to the filing of this lawsuit. e) That the defendant company be ordered to pay both costs. f) That a writ of annotation of this ordinary lawsuit be drawn up against the properties to be indicated”, (folios 19 to 20, and 577 to 578).- 2.- The defendant company answered the lawsuit by filing at folio 172 to 186, and asserted the defenses of statute of limitations (prescripción) and expiration (caducidad).

3.- The first instance judge María Carolina Hurtado García, in a judgment at one forty-eight in the afternoon of May twenty-six, two thousand ten, resolved: “THEREFORE: In accordance with the foregoing, the defense of statute of limitations (prescripción) is rejected, and the defense of lack of right is upheld. The present ordinary lawsuit filed by AGROVERDE DOS MIL SOCIEDAD ANONIMA against [Nombre4] CENTROAMERICA SOCIEDAD ANONIMA is dismissed in all its aspects. The plaintiff company Agroverde Dos Mil S. A. is ordered to pay the [Nombre5] personal and procedural costs.

4.- The plaintiff party filed an appeal with an express indication of the reasons on which it is based to refute the thesis of the trial court, (folio 596 to 626).- 5.- In the processing of the case, the legal requirements have been observed, and no errors or omissions capable of producing the nullity of the ruling are noted.

Drafted by Judge Castro García, and;

CONSIDERING

I.- Evidence for better adjudication (Prueba para mejor resolver). Based on article 52 of the Ley de Jurisdicción Agraria, because it is deemed unnecessary for the resolution of this appeal, the evidence offered for better adjudication to receive the statement of Engineer [Nombre6] offered by the plaintiff, and official communication DSFE 001.2010 offered by the defendant party must be rejected.

II.- The Court shares the facts deemed proven in the challenged judgment as they are consistent with the evidence produced in the case.- III.- The facts deemed unproven are endorsed, as there is no evidence from which the contrary can be deduced.- IV- The special judicial representative of the plaintiff, in briefs filed with the court on June 11, 2009 (folio 596), filed an appeal against the first instance judgment (folio 577). He grieves that he filed this proceeding against the defendant by virtue of the existence of biological evidence, microbiological, chemical, mineral, and physical analysis that the physical characteristics of the substrate that the defendant supplied were insufficient and caused them serious damages and losses, as well as damage to the credibility of their family business. He reproaches that the defendant did not refer to the evidence provided, which, although the trial judge (a quo) endorsed, she deemed insufficient to uphold the lawsuit. Specifically, he expresses the following disagreements: 1) Regarding proven facts. It was accredited that: a) the plaintiff is dedicated to the production of vegetable seedlings for sale to small and medium producers. b) from 2002 to 2005, products such as trays for developing seedlings and bags with a mixture of peat and perlite for germination, brand VJ-PMP, were acquired from the defendant. c) according to the judgment, between 1999 and part of 2006 there were problems in the germination phase of tomato, chili, and lettuce seedlings. Incorrect dates, since the fact that one of the witnesses mentioned the year 1999 was due to an involuntary lapse; because the lawsuit makes no reference to periods prior to 2002. He argues that this error has given an advantage to the defendant company, even though the lawsuit does not mention a commercial relationship on those dates, and said relationship did not exist, and credibility has been taken away from the abundant technical evidence. He points out that it is clear that the problems with the substrate existed, since the defendant acknowledged that it sent representatives without sufficient technical knowledge to change the poor-quality substrates for others. Regarding the merits of the matter, he deems the evidentiary assessment to be contrary to law. He argues that not only his represented party was affected by the VJ-PMP substrate, but also two other owners of seedling nurseries that carried out the same activity as the plaintiff at that time, which was indicated in the ruling that such experiences are not of relevance for the resolution of the case, which is contrary to legal logic, because if the product affected others, it brings to light the problems of waterlogging, poor drainage, and root rot. He contends that it is a real damage also caused to others who could not face the economic expense of a judicial process. He deems that by the judge saying that the plaintiff's lawsuit was based on conjecture, she is distancing herself from the results of the analysis, expert reports, witnesses. He grieves that the damage caused was of legal relevance, deserves protection, and has not been repaired. There is a causal relationship not observed by the judge. He indicates that a substrate with deficient physical qualities has various effects: waterlogging due to water drainage problems and poor aeration of the substrate, which leads to poor seed germination and root rot in the seedlings. The trial judge deemed she did not have sufficient evidence, which is to go against the current and convince oneself that what was observed is neither correct nor true. He contests the lack of assessment of and reference to the agronomic evaluation of the physical characteristics of the six batches of the brand VJ-PMP substrate, which resulted from the physical analyses of the substrates prepared by the INTA laboratory, which corresponds to documentary evidence “D” attached to the lawsuit brief and was not refuted. The result is the most convincing, conclusive, and irrefutable evidence, since the substrate in question was totally deficient and its physical characteristics made it unfit for the use for which it was sold. He claims that what had to be proven was that the supplied substrate lacked the physical conditions to produce the desired effects for which it was acquired, and he cites the agronomic evaluation table, and not the specific dates on which the problems occurred, which the trial judge pointed out. He emphasizes that the trial judge showed subjectivity and lack of knowledge in resolving a technical case. He appeals, the judge was interested in the certified copy of the inspection record book 31 from the Ministerio de Agricultura y Ganadería (Ministry of Agriculture and Livestock), to try to undermine his lawsuit in which she noted that even after the filing of the lawsuit, deficiencies in lettuce germination were observed. He explains the above by indicating that for a company dedicated to an activity as delicate as the production of seedlings, which must be compared to the production of baby plants, making a drastic change in the planting material causes serious inconveniences, which takes time. He adds, given the abrupt suspension of the supply of the defective product by the defendant, a substitute material was sought, in which there was a period of adaptation and trial, with substrates provided by other companies that necessarily produced germination problems. However, the problem was corrected, as the supplier company SPF Agroplásticos S.A. had a second substrate with larger particle size (coarser particles that gave better drainage and aeration to the substrate). This point was clarified in the expert report (informe pericial) rendered by engineer Luis Fernando Avendaño. In said document, he made clear the state in which he found the germination stages of the seedlings and refers to said report and photographs numbered 1 to 15; which also reflect the storage and handling conditions of the duly certified seeds. He grieves being in disagreement with the decision of the trial judge regarding the lack of certainty, since with the expert evidence, the laboratory evidence, and the very witness and deposition testimony, one arrives at the reality of what happened. He proceeds to make an analysis of the witness statement of [Nombre7] and in that regard deems there was a statement against him when he indicated, contrary to what the ruling says, that the agricultural practices and the seeds were certified by the producing house and the actions by the nursery were correct at all times. It is extracted that the recommendations made by the technician [Nombre8], an employee of his company, did not solve the problem, because the real problem was in the physical characteristics of the substrate and that the same agricultural practices have been maintained, which for the defendant are incorrect, but upon changing the brand of the substrate, the germination problems reproached in the lawsuit no longer appeared. It was accredited that the plaintiff company, responsibly, referred the matter to the competent entities in phytosanitary matters, that is, the Servicio Fitosanitario del Estado. In that instance, it was demonstrated that the problem did not consist of the defendant’s conjectures when it alleged bad agricultural practices, quality of the seeds, or water used. That company did not count on the fact that the plaintiff would not be satisfied with its explanations and would resort to the State through the official entities in charge of the matter of plant health of crops, and that the result of said investigations, carried out using internationally recognized methods and with competent professionals, would lead them to file this lawsuit. It is appealed, the ruling does not comment on anything in this regard, and it would seem to be in disagreement with the fact of having resorted to such instances to find the cause of the problem, which was established without any doubt. He points out that the defendant mentioned that it needed to request a certification of analysis from the substrate supplier in Canada, the result of which management was never made known to him and was not contributed to the case file. He contends that while the plaintiff bears the burden of proof, that does not exempt the defendant from offering exculpatory evidence to refute the facts attributed to it. He argues that the defendant never provided evidence of having made a claim to the supplier for the problems its supply generated and questions the defendant’s conduct in continuing to receive this material and merely limiting itself to replacing it with another that also proves ineffective, without any claim being made to clear its name in commerce or recover its losses. The foregoing causes strangeness to the appellant, and such an aspect is not even mentioned in the appealed judgment. He states, with this evidence it became clear that: a) until the end of 2004, the defendant, through Mr. [Nombre8], began taking notes of the numbers that identified the bales. This information came by lot number, and for purposes of traceability, the substrates are worked with said identification, which is printed on the packaging, and therefore, in his opinion, he removed those he deemed defective and replaced them with others in better condition. The above produced irregularity in the greenhouses, when the seeds germinated, which manifested in the form of patches. That is to say, good trays, others half good and half bad, resulting in totally gray roots damaged by excess water accumulated due to the poor physical characteristics of the substrate. b) The invoices issued by the defendant did not record the lot number that was acquired, which is always indicated when acquiring, for example, seeds. c) No study was carried out by the defendant that would provide them with information on the substrate, which is confirmed by the testimony of [Nombre8]. It is indicated by the appellant that with the deposition testimony, the reasons why they continued to use the product despite the problems it presented are explained. In addition to this, he outlines that there was not enough choice in the market to acquire a good quality product, which they found in the Klassman brand supplied by the company SPF Agroplásticso S.A., who did perform physical analyses of the substrate, and the change was made immediately, without modifying agricultural practices, and the results were optimal due to the quality product. He grieves that having resorted to the competent state entities provided them with the technical basis that provides the foundation for the lawsuit. Regarding the statement of Ulises Jiménez Jiménez, he points out that in his condition as a public official, he attested to the sampling in accordance with Ley 7664 and its regulations, which could not be refuted by the defendant. He highlights that the tests were carried out in compliance with the law and that it was not a matter of pests or diseases, bad practices, or other conjectures outlined by the defendant that caused the poor seed germination, post-germination root death, non-uniformity, and loss of vigor. He indicates that the results from INTA demonstrate the poor physical quality of the substrate and that the agricultural practices were adequate. Regarding the seeds, he mentions that their use and handling adhere to the procedure governed by the Oficina Nacional de Semillas and are duly registered, and engineer Luis Fernando Avendaño himself indicated regarding them that a detailed log is kept where their traceability is observed, with proper identification, to whom they were given, and it was ruled out that the seeds used presented problems. In this regard, none of the above was sufficient for the trial judge, without her indicating the reason for the rejection. Regarding the statement of [Nombre9]. It is appealed, with his decision it is demonstrated that the problem was in the substrate sold and not in any other cause, since he was aware of the tests that Mr. [Nombre8] carried out to determine the origin of the problem.

That witness explained the nursery's modus operandi without any aspect being able to be challenged, and was emphatic that the substrate presents a lot of humidity due to its fineness and the existence of an irregular mixture of the product, and questions how a renowned Canadian company was going to supply a product of such poor technical quality: They blame the defendant for not defending the clients in the country given the supply of a product of that nature, which demonstrates a poor quality control system before its packaging, and by not taking any measure against its supplier, makes it responsible for the damages caused. They indicate that the lower court downplayed this statement. Regarding the statement of [Nombre8]. They allege they are impressed by the importance given in the ruling to the only witness offered by the defendant, as opposed to a group of professionals in phytosanitary matters, nursery owners, and results of technical tests, and even expert reports that should have been accepted for meeting the requirements. Regarding this testimony they point out: the defendant was aware of the problem, as that witness was the person the company sent when inconveniences occurred. Said witness clarified having experience in interpreting physical evaluations of substrates, for which he resorts to laboratories such as Agrotec and Cafesa. They consider it transcendental that neither the witness nor the defendant provided any document showing that Mr. [Nombre8], faced with the plaintiff's problem, submitted the physical problem of the substrate in question to the laboratories he mentioned. The foregoing was impossible, as such laboratories are specialized in soils and lack methodologies for physical analyses of substrate. The defendant did not provide any evidence contradicting the results of the state entities through their laboratories. They are aggrieved that his testimony could not disprove that the problems originated in the physical qualities of the substrate that produce a deficient and anti-commercial plant, and not in pathogenic elements or the State's bad agricultural practices. Regarding his testimony, the appellant argues that it tried to point towards said incorrect practices cited, however the testimony of [Nombre9] demonstrates the contrary and could not be disproved. They point out that the witness [Nombre8] indicated that they informed the manufacturer of the problem, and the product was discarded without knowing who the manufacturer is, under what conditions it is produced, where the product was packaged, as well as the responses thereof; which should have been disclosed to its distributor, the defendant company, within a logical commercial relationship. Said witness accepted that the product came with low perlite content, which was what originated the claim, such physical quality translates to low quality, which was confirmed with the INTA analyses. The foregoing, they point out, was never understood by the first instance judge. They indicate that the testimony under analysis demonstrates the bad commercial practice of their employer and the deficiency in the physical quality of the substrate, and question the reason for the judge's conclusion of not having sufficiently accredited that deficient quality. The testimony of [Nombre10]. Said witness was affected by the product sold by the defendant, as it drove her company Almácigos y Semillas S.A. to bankruptcy, and it became impossible for her to face a judicial process. The witness argued that she had to compensate each client she had for the poor germination of their plants and she maintained good agricultural practices as she was supervised by the State Phytosanitary Service (Servicio Fitosanitario del Estado) and pointed out that twelve days before the major problem caused, she proposed her company as a model for the use of said substrate and it was carried out with the accompaniment of Mr. [Nombre8]. Her testimony disproves the defendant's defense when it indicates the cause would be bad practices, as the damages suffered in her nursery were the same as those of the appellant. She indicated that such situation was accepted even before the defendant's partners and she undertook the task of trying to locate the supplier company, from which she obtained no information. Regarding the testimony of [Nombre11], who was another user, he presented identical problems to the previous witness and the plaintiff and could not, like the rest, initially know the origin of the problem and who also suffered serious economic harm. They point out the importance that the geographical location of his nursery was very distant from that of the appellant. The same thing occurs in the sense that the defendant company nor Mr. [Nombre8] could give an answer to his problem, which was solved when he started using a different substrate. They blame that the lower court weighed the evidence indicating it did so based on the rules of sound criticism (sana crítica), but against what was yielded by the technical and scientific evidence. The witness [Nombre12], who is a doctor in phytopathology and their advisor, demonstrated that there was permanent surveillance over the crops regarding diseases and that there was a problem of water saturation (saturación de aguas) that affected them. His presence proves that the company was advised in phytodisease matters. Said witness was clear that the origin of the damage was due to abiotic causes, that is, lack of oxygenation due to water saturation and not due to pathogenic agents (microorganisms). They clarify that this witness had a lapse when he indicated without malice that he had seen the use of the substrate since the year 1999, which is not correct, as the company did not have a commercial relationship with the defendant on those dates, which does not affect the substance of the matter. They reject that this technical and scientific evidence was disqualified, as it would mean considering that science and research lack reason for being. They consider that the ruling is devoid of technical basis. The witness [Nombre13], who serves as a State phytosanitary engineer, is a technical witness who, during the period when the analyses were performed, was in charge of the greenhouses where such tests were developed, to observe if there were pests or diseases. That person explained the planting procedure in the greenhouses with exclusion of third parties, as well as that the results thereof were sent to the heads and the existence of the file. The result obtained is that no pests or diseases were observed, but rather mechanical damage or necrosis in the plants' reticules and a physical and microbiological analysis was recommended to determine the origin of the damage, as the reason was initially unknown. His testimony could not be disproved by the defendant, who tried to make him fall into contradiction by showing him photographs of unknown origin and to which the mentioned deponent responded that the greenhouses did not have those conditions at the time of doing the tests. The planting test was carried out objectively only by them and on two occasions, and the official one corresponded to the second. This evidence also did not merit faith from the judge. Regarding the expert report (informe pericial). They appeal; said evidence was requested by the defendant and was objective and overwhelming and carried out by an expert who knows about substrates, seeds, seedbeds. Said report is prepared after the filing of the lawsuit and made it clear that there were no germination problems, which the judge used to benefit the defendant's position. They allege the objective of the report was to determine whether the substrate or the plaintiff's bad practices caused the damages, and this was determined, and the defendant could not disprove the facts alleged in the lawsuit and having determined the deficiencies pointed out. They blame the lower court for only taking parts of their statements, and they do not know how the judge wished to have the damages accredited and proceeds to disregard the most important and overwhelming evidence. Regarding damages and losses (daños y perjuicios). They argue, how would they prove these aspects, with the stance of the lower court judge who did not even consider the technical deficiencies of the substrate proven. Upon rejecting the lawsuit, these claims were denied, and they request that such items be declared in the abstract, and it be in the enforcement phase that they are enforced. [Nombre5]. They reproach the condemnation of such aspects and the damages and losses, when they have acted with absolute good faith. The damages and losses have only been suffered by the plaintiff, and the defendant has not been harmed in any way. They finish indicating that the nature of this matter is more technical than legal. As evidence for better resolution (prueba para mejor resolver) they request that the engineer [Nombre6] be called, who was in charge of the technical interpretation of the physical analyses, carried out on the VJ-PMP substrates by the INTA laboratory, which is fundamental evidence in this process. The defendant, without having filed an appeal, offers as evidence for better resolution official document DSFE 001.2010 of January 4, 2010, visible at folio 653 to 668, and as an argument for its admission proceeds to attack said evidence, as they mention that such reports rendered by the State Phytosanitary Service (Servicio Fitosanitario del Estado) were not made for the purpose of serving as evidence in a judicial process, and in their preparation they did not have knowledge, precluding the possibility of intervening in the evidence, and accepting that means of evidence violates their right of defense and is illegal evidence because it comes from the State, among other aspects. They also proceed to offer certifications from a certified public accountant that detail the purchases made by the witnesses of the substrate that were provided before the lower court judge and that were rejected by the lower court at that opportunity.

**V.**- In the first place, this Court observes that in the judgment the solution to the specific case was developed considering it was a claim for damages under subjective liability regulated in Article 1045 of the Civil Code. Under that hypothesis, it is the injured party who had to prove the causal link (nexo causal) between the damage and the losses suffered. The foregoing is deduced from what is set forth in the final paragraph of the seventh considerando of the judgment, when it literally reads: "*With the review of the evidence produced, the undersigned deems it is not pertinent to impute the germination problems in the plaintiff's nursery to the defendant. In accordance with Article 317 of the Civil Procedure Code, the company Agroverde Dos mil S.A. bears the burden of proof in demonstrating the damage, the relationship of causality, and the authorship of the defendant. In this case, it was not demonstrated in a clear and conclusive manner that the substrate sold by VJ-Centroamérica S.A. was the exclusive factor that caused the damages and losses claimed. Consequently, it is not pertinent to impose on the defendant the duty to indemnify them.*" (bold is not from the original). This instance does not agree with what was indicated by the first instance judge in her ruling, because from the review of the lawsuit and the specific case, it is possible to determine that we are facing an action whose claim originates from a consumer relationship and from which payment of damages and losses under objective liability is claimed. In general terms, under such assumption, the simple existence of the damage imputes liability to the harmful agent for having caused said damage, and from there the obligation to indemnify the damages and losses caused would arise. The burden of proof that such damage was not caused by virtue of the good or service acquired by the consumer and disproving the relationship of causality attributed by the plaintiff falls on the defendant. As set forth in proven facts 1 to 5, the plaintiff is a company dedicated to the production of vegetable seedlings and between January 2002 and March 2006 bought from [Nombre4] Centroamérica S.A. trays for the development of seedlings and sacks containing mixtures of peat and perlite for germination, brand VJ. During the commercial relationship, the plaintiff bought 4513 sacks of peat and perlite mixture for germination called V-J Plug Mix Perlite. The plaintiff blames problems in the germination of chili, tomato, and lettuce seedlings. Which it identifies with the presence of radicle rot and excess water in the growing medium. It alleges in the lawsuit that such inconveniences arose due to deficiencies in the physical qualities of the substrate acquired for the production of seedlings, and therefore the defendant be ordered to pay the damages and losses caused to its company. As can be observed from the lawsuit, it reproaches the payment of damages and losses caused by the product sold by the defendant to the plaintiff, to be used in the seedling production process. For its part, the defendant answers (folio 174) accepting that the company Agroverde Dos mil S.A. was its client for some years and acquired, among other products, the VJ-PMP substrate, which is a germination medium sold to a large number of companies. The same consists of a mixture of sphagnum peat with perlite and other ingredients specifically designed for seed germination. As observed, there is a relationship between the contending parties, in which the plaintiff company holds the nature of a consumer. Regarding objective liability, the Chamber has resolved: "..*must only prove that the damage exists and that it occurred as a direct and immediate consequence of the activity deployed .. It does not require demonstration of fault or fraud (culpability in a broad sense), since the criterion of attribution is objective. It is up to the judge to examine in each case whether or not there is direct and adequate causality between the damage claimed (and demonstrated) by the petitioner and the activity (active or omissive) deployed.. .*" (Ruling no. 662-F-S1-2012 of 14 hours 20 minutes of May 26, 2010) and regarding *objective liability in favor of the consumer and its extension, the First Chamber has resolved: "V.- Objective liability for risk in consumer matters. Regarding liability, two main branches can be located, one subjective, which requires the concurrence, and consequent demonstration, of fraud or fault on the part of the author of the harmful act (e.g., cardinal 1045 of the Civil Code), and another objective, which is characterized, essentially, by dispensing with said elements, with the attribution of damage being the central axis upon which the duty to repair is built. As an example of the above, there is numeral 35 of the Law for the Effective Defense of the Consumer, where the merchant, producer, or provider shall be liable for those damages derived from the traded goods and services rendered, even when negligence, imprudence, lack of skill, or fraud is not detected in their actions. Likewise, it is important to consider, due to its influence on the evidentiary matter, that the determining elements for the emergence of civil liability, whether subjective or objective, are: a harmful conduct (which may be active or passive, legitimate or illegitimate), the existence of a damage (that is, an injury to a protected legal right), a causal link (nexo de causalidad) that links the two previous ones, and in most cases the verification of an attribution criterion, which will depend on the specific legal regime. As for causality, it is necessary to indicate that it is a case-by-case assessment carried out by the judge in which, based on the facts, determines the existence of a relationship between the damage claimed and the conduct deployed by the economic agent. Although various theories exist on the matter, the one considered most in accordance with the Costa Rican regime is that of adequate causality, according to which there is a link between damage and conduct when the former originates, if not necessarily, at least with high probability according to the specific circumstances affecting the matter, from the latter (in this sense, see, among others, resolutions 467-F-2008 of 14 hours 25 minutes of July 4, 2008, or 1008-F-2006 of 9 hours 30 minutes of December 21, 2006). At this point, it is important to clarify that the verification of exempting causes (fault of the victim, an act of a third party, or force majeure) acts on the causal link, discarding that the conduct attributed to the defendant was the producer of the injury suffered. With regard to the different attribution criteria, for the purposes of the present case, the theory of created risk is of interest, which was expressly included in the Consumer Defense Law. The objective scheme favored by the law, as well as the application of the cited attribution criterion, emerge from the simple reading of the rule in question, which stipulates: 'the producer, the provider, and the merchant must respond, concurrently, and independently of the existence of fault, if the consumer is harmed by reason of the good or service, of inadequate or insufficient information about them or their use and risks. / Only one who demonstrates that they have been unrelated to the damage is exempted. / The legal representatives of commercial establishments or, as applicable, those in charge of the business are responsible for their own acts or events or for those of their employees or assistants. Technicians, those in charge of preparation and control respond jointly and severally, when appropriate, for violations of this Law to the detriment of the consumer.' (bold added). Carrying out a detailed analysis of the rule just transcribed, a series of conditioning elements for its application emerge. In the first place, and from the standpoint of the subjects, that is, who causes the damage and who suffers it, the application of this liability regime is subject to certain qualifications being present in them. Thus, regarding the former, it is required that they be a producer, provider, or merchant, be they natural or legal persons. For its part, regarding the latter, the injury must be inflicted on someone who participates in a legal relationship where they are positioned as a consumer, in the terms defined in the reference legal body and developed by this Chamber. It is required, then, that both parties form part of a consumer relationship, whose object is the potential acquisition, enjoyment, or use of a good or service by the consumer. ....., upon the existence of a consumer relationship, the specific case must be analyzed under the scope of coverage of numeral 35 under discussion. Likewise, from the precept under study, it emerges, in the second place, that the legislator set a series of attribution criteria based on which the objective liability regulated by this cardinal can be imputed, within which is the already cited theory of risk. Thus, this serves as a factor to attribute liability to the subjects referred to. In essence, that theory postulates that whoever creates, exercises, or benefits from a lawful lucrative activity that presents potentially dangerous elements for others, must also bear its inconveniences (ubi emolumentum, ubi onus, which can be translated as where the emolument is, there lies the burden). From the previous statement, two characteristics can be inferred: on one hand, that the risk comes from an exploitation activity; and on the other, being performed by the human being, so-called acts of nature are excluded. Concomitantly, it is important to make some clarifications regarding the risks suitable for the generation of liability, since not every risk implies the automatic emergence thereof. Currently, life in society offers a countless number of risks, of different degrees and scopes, to the point that it can be affirmed it is impossible to find a daily activity that is exempt from them. In this line, the interpretation of the rules cannot start from an absolute and total aversion to risk, which, as indicated, forms an integral part of societal coexistence and the technological advances that are integrated into it.*" The foregoing leads to the assertion that, for the duty to repair to arise, the risk associated with the activity must present a degree of abnormality, that is, it must exceed the margin of tolerance that is admissible according to the rules of experience, which must be analyzed on a case-by-case basis by the judge. The second point requiring some comment concerns the subject who becomes obligated by virtue of an activity considered dangerous. As already indicated, the criterion for imputation is, precisely, the risk created, which suggests that the person to whom the damage is imputed must be in a position of control over that risk, meaning they must be the one who carries out the activity or assumes the possible associated negative consequences, receiving a benefit from it. This benefit may be direct, which can be identified, among others, with the income or emoluments obtained as consideration, or indirect, when the advantageous situation occurs reflexively, as happens with alternative mechanisms that tend to attract consumers, and consequently, result in an economic profit for the offeror. It is important to mention that in an activity, different degrees of risk can be found, which must be managed by the subject who benefits from it, a circumstance that exerts a direct influence on the evidentiary duty incumbent upon them, as it is relevant for determining imputation in the sub judice. The foregoing, coupled with the existence of exempting causes, demonstrates that the legislation under discussion does not constitute an automatic transfer of assets.

**VI.-** In the present case, the plaintiff's claims were upheld by a majority by the Tribunal, which considered that the operation of the electronic banking system presents such a dangerousness that it allows the damages inflicted to be imputed to the Bank. ......... As mandated by numeral 35 of the Consumer Protection Law (Ley de Protección al Consumidor), there has been an injured party by reason of the service, which upon being used (and in view of its risky nature) produced a significant injury to the party appearing in the process as the plaintiff. Consequently, instead of an improper interpretation of the norm, the article has been given its correct and proper meaning..... In addition to the foregoing, it must not be lost sight of that the emergence of liability depends on the existence of unlawfulness (antijuridicidad), without objective liability being the exception, it being necessary to determine, in this case, whether the affected party was under a legal obligation to bear the damage, as is extracted from the principle of patrimonial indemnity. This basic unlawfulness (antijuridicidad) is identified, in the present case, with the risk existing in the operation of the service, as is deduced from the evidentiary record itself, whose improper valuation is being claimed. It is for what has been indicated up to this point that the arguments put forth by the appellant to the effect that the safety obligation is of a commercial and not a legal nature are not receivable. As was already advanced, the development of actions assumed by a legal subject, and which foreseeably have the potential to cause damage, implicitly carries the duty to guarantee the safety of those actions. In this line, it is not a matter of the defendant demonstrating the diligence it has exercised, since this is an aspect characteristic of a subjective system of liability.

**VII.-** In summary of the foregoing, in the specific case, the concurrence of an exemption from liability was not demonstrated, such as the fault of the victim, the act of a third party, or force majeure. Although the first is alluded to, there are not, within the evidentiary record, sufficient elements to affirm that the victim participated in the production of the damage. Had any of these circumstances been proven, it would be impossible to establish a causal link between the Bank's conduct and the injury, so a duty to repair could not arise on the part of the entity. As already stated, the existence of an exemption implies that the cause of the impairment can be linked to another subject, or what is the same, that the defendant is unrelated to the damage inflicted. In any case, in the present case, the concurrence of an exempting cause was not proven, nor that the Consumer Protection Law (Ley de Protección al Consumidor) is not applicable; therefore, since there is damage as a consequence of a risky service, in the terms of numeral 35 of the cited normative body, an improper application of the legal regime by the instance judges is not appreciated." (Sala Primera de Casación, No. 1098-09, of 2:45 p.m. on October 22, 2009). That which was resolved by that high Tribunal, which is shared by this court and finds its legal basis in Article 41 of the Political Constitution and 35 of the Effective Consumer Law (Ley Efectiva del Consumidor), in addition to what is specifically mandated for the activity carried out by the defendant company in the Phytosanitary Protection Law (Ley de Protección Fitosanitaria) which states: "Article 32. 'Those who import, manufacture, formulate, repackage, rewrap, distribute, store, transport, sell, and apply chemical, biological, or related substances for agricultural use shall be obligated to compensate for the damages and losses that, through their actions or omissions, they cause to agriculture, livestock, human health, and the environment'." Regarding the issue of damage and risk, this Tribunal has outlined some pertinent doctrinal criteria: "V. Modern doctrine, for its part, has supported the objectification of liability, by including risk among the factors of imputability and legal attribution of damage, apart from fault (culpa) and intent (dolo). It has even been proposed to include as other objective factors: guarantee, equity, abuse of right, and excess of normal tolerance between neighbors. Damage is thus seen not from the perspective of the author's act but from the position of the injured party, to ensure that every damage caused unjustly is repaired. From another point of view, fault (culpa) has been separated from the unlawfulness (ilicitud) of the act, giving a more important role to the latter. 'Once the equivalence between the unlawfulness (ilicitud) of the act and fault (culpa) was broken, conduct acquired an autonomous physiognomy, detached from the subjective profile of the agent's will, to become a simple means, cause, or connection criterion between a subject held responsible and a certain damaging event to be compensated.' (Franzoni (Massimo), La Actividad peligrosa, in Responsabilidad por daños en el tercer milenio, Abeledo Perrot, Buenos Aires, 1997, p.120). Thus, reference is made to the Theory of Risk, which does not displace fault (culpa) but rather complements it, and is summarized as the duty of one who creates a risk to indemnify the damage caused to a third party. 'Risk is a cause of imputability when, due to the performance of certain causes and specific activities, qualified as dangerous, damage occurs. The damage in these circumstances must be compensated, not because its agent incurred in intent (dolo) or fault (culpa), but because the legal order must protect the community from the development of dangerous activities, such that whoever carries them out incurs liability if damage is occasioned by virtue of such performance... Liability derived from risk does not depend on the intent (dolo) or fault (culpa) of the agent but originates in the mere occurrence of damage consequent to the dangerous activity. This consideration brings with it a special regime of proof, according to which, by the mere exercise of the unsafe activity, the fault (culpa) of the agent is presumed, exonerating the victim from the task of demonstrating improper conduct. It is up to the agent to rebut the presumption...' ([Nombre14] , Hecho imputable dañoso in Del daño, Editora Jurídica, 1st Ed., Colombia, 2001, p.260). For other authors, 'the causal relationship is an element of the unlawful act (acto ilícito) and of contractual breach that links the damage directly with the anti-juridical act (hecho antijurídico), and indirectly with the element of subjective imputation or objective attribution. It is the binding factor that causes the damage and the fault (culpa), or in its case the risk, to integrate into the unity of the act that is the source of the obligation to indemnify' (see [Nombre15] (), El perfil de la responsabilidad civil al finalizar el siglo XX in Responsabilidad por daños en el tercer milenio, Abeledo Perrot, Buenos Aires, 1997, p.24 to 26)." ( Voto 541-F-11 Tribunal Agrario).

**VI-** This court considers that both the plaintiff company and the defendant contribute to the development of a strategic and fundamental activity for the Costa Rican State, as they ensure the nation's food security and bear the responsibility and duty to promote the development of agricultural activity in such a way that the phytosanitary condition of plants is protected. For this purpose, nurseries, seed banks, seedbeds (almácigos), and companies of this nature are regulated and protected by the State through the provision of a specialized technical state structure, to assist and control their activities and prevent serious problems such as the spread of pests, protecting human health and the environment. To this end, a series of laws and regulations have been instituted aimed at establishing the technical and legal provisions of mandatory observance for producers. Within that normative framework, we find the Phytosanitary Protection Law (Ley de Protección Fitosanitaria) number 7664 and the repealed Nursery Regulation (Reglamento de Viveros) and current decree number 33927-MAG Regulation for Nurseries, Seedbeds, Seedbeds, and Bud Banks (Reglamento de Viveros, Almácigos, Semilleros y Bancos de Yemas) published in La Gaceta of October 30, 2007. Said regulation, in its fourth article, establishes the obligation for these establishments dedicated to the activities they regulate to be duly registered with the Nursery Program and to comply with the specific phytosanitary measures for each activity. Article 14 of this regulation establishes the power of the State Phytosanitary Service to take samples that will be taken to the Official Laboratories for the diagnosis of the presence of pests or diseases, and for this purpose, phytosanitary inspectors are empowered. This court observes that the various grievances are related to the value given to the elements of proof by the trial judge, who did not consider it accredited that the alleged damage from the germination problems in the seedbeds (almácigos) were caused exclusively by the use of the substrate sold by the company [Nombre4] Centroamericana S.A. The appellant's disagreement lies in the fact that the lower court judge (a quo) did not consider the scientific, technical, and expert evidence sufficient to consider it proven that the substrate caused the damage to the plants in the plaintiff's nursery during the period from January 2002 to 2006, as well as the value given to the testimonies and documentary evidence. As was explained in the preceding recital (considerando), the liability exemptions for the defendant company would be force majeure, fault of the victim, or the act of a third party, which must be studied to determine if they are present and manage to break the causal link between the conduct and the damage claimed by the plaintiff. The defendant party has alleged in its favor the fault of the victim and the act of a third party, because despite having accepted that the substrate sold had problems in its physical composition, it argues that the germination problems cannot be attributed solely to the substrate. They bring up that the plaintiff, in its production process, received seeds from its various clients, had irrigation problems, did not comply with their technical provisions for the use of the product, and developed poor agricultural practices in its nurseries.

Grievances. Regarding the lack of assessment of the scientific and technical evidence and having considered the causal link proven with it. The party grieves that the lower court judge (a quo) indicated she lacked sufficient evidence to consider the facts proven. In the sixth recital (considerando) of the judgment, it was reasoned that by virtue of the confessional evidence, it was considered proven that the plaintiff company was supplied seeds by its clients. It also considered the commercial relationship between the parties from January 2002 to March 2006 as proven, during which the sale occurred, among other products, of the substrate used in the plaintiff's productive process. In the ruling, these conclusions are obtained from documentary evidence of invoices and confessional evidence. It was admitted by the defendant that 4,513 sacks of said product were purchased. It is described that problems arose with the substrate that affected germination. In this regard, the judgment indicates that the specific dates on which such inconveniences occurred were not demonstrated, nor the quantity of seeds and seedlings that suffered those circumstances. The lack of clarity regarding the specific date on which this problem began in the seedbeds (almácigos) of Agroverde Dos Mil S.A. is recorded. The lower court judge (a quo) bases this conclusion on the testimony of [Nombre12] , who indicated that such moisture saturation problems in the roots had been occurring since 1999. The lower court judge (a quo) also points out that in 1999, the defendant was not selling the substrate to the plaintiff. She also relies on the testimony of [Nombre9] , who stated that the biggest problem arose from late 2004 to early 2005, which is when the problem occurred. The appellant party grieves that the date indicated by the witness [Nombre16] was due to a lapse, as in 1999 there was as yet no commercial relationship with the substrate seller, and the defendant itself indicates the dates on which the sales occurred. This court considers that such a grievance cannot be accepted, as it was recorded in the corresponding minutes and cannot be varied, since all parties to the process were aware of such statements, and the date mentioned by said witness was never objected to or requested to be corrected. What has been recorded is the existence of the commercial relationship between the contending parties and that, upon the termination of the commercial relationship, the defendant company sold the plaintiff the substrate to which the germination problems are attributed, as was recorded in the appealed ruling. The judgment indicates that it was also not proven that the alleged damage to the plants was due exclusively to the substrate. Furthermore, it was pointed out that it was accepted that the technical recommendations given for the use of the substrate by the manager of the selling company were not followed. The appellant party grieved in this sense, that the judgment gave importance to the lack of demonstration of the dates of the damages, when the important thing was to determine that the deficiencies in the physical characteristics of the substrate caused the moisture retention problems, and that inadequate drainage and aeration caused damage to the seedlings. It pointed out the lack of assessment of evidence "D" Physical Analysis of the substrate, and the expert and confessional evidence. In this aspect, the appellant is not correct. To grant this claim, the causal link between the conduct and the damage inflicted must be clear. From the assessment of the physical analysis evidence of the substrate and the expert evidence presented in this matter, it has been demonstrated that the analyzed substrate had deficient physical qualities and that these could cause damage to the germination of the plants. The lower court judge (a quo) is correct when she reasons in the judgment that the evidence was not sufficient for her to prove that the damage was caused solely by said substrate and that it is not clear that the procedure applied by the plaintiff to the substrate in its facilities was consistent with that developed by the State in its study. The foregoing, as it was accepted by the plaintiff party in its claim, that the seeds used were given by various clients and that the recommendations for modifying agricultural practices were not accepted by the manager, as they did not agree with them. On the other hand, as pointed out in the judgment, the analyzed samples were taken after the period claimed by the plaintiff, since the problems begin in 2002, and the physical analysis evidence identified as D is from 2006. Added to this, the expert evidence is from March 2009. While it can be determined that the product sampled by the State was deficient, it is not possible to deduce, for the reasons stated, that the damage to the plants was solely due to the substrate or that situations extraneous to the product did not intervene and interfere with the germinated plant.

Regarding the evidence to which value was not granted but which it had, the appeal mentions the following: evidence A- Biological test conducted at the Ministry of Agriculture and Livestock, State Phytosanitary Service, Phytosanitary Diagnosis, Greenhouses of June 5, 2006 (page 4), which reports on the result of sowing Lettuce Lactuca Sativa variety Gulf Stream in substrates supplied by the company Agroverde Dos Mil S.A. in five lots identified with numbers 1975 to 1980. Said report concludes that the root damage present in the ungerminated plants "could be" a consequence of the physical or chemical characteristics of the substrate, because no damage caused by pathogens was observed on the foliar part, and recommends a physical, chemical, and microbiological analysis of the substrates. In the Microbiological Analysis. Evidence B (page 5) it was concluded that no pathogenic fungi or bacteria (causing pests and diseases in plants) were found. The Mineral Chemical Analysis of the organic substrates identifying the same described lots, Evidence C, was provided (page 6). In what is relevant, the Physical Analysis. Evidence D (page 7) determined moisture retention. On page 234, there is record number 21 of April 28, 2006, from the State Phytosanitary Service. In it, it is recorded that the official of that unit, Engineer Ulises Jiménez Jiménez, presented himself at Agroverde Dos Mil S.A. to take the aforementioned laboratory analysis samples from INTA to determine the physical, chemical, and microbiological characteristics of the sampled lot. Indicating that the sampled lots are: 1212505, 1312505, 0912505, 1001505, 11011505, 1201505, and said samples are assigned the seal numbers from 1975 to 1980 and describing which corresponds to each lot, and the mention of remaining under the custody of the MAG and that the sampled material corresponds to the substrate produced in Canada and sold by VJ- Centroamericana S.A.

The defendant party provided, with the response to the claim, two trials that were carried out in 2002 by virtue of the problems that arose with plant germination. Namely, Trial 002-02: Sweet Pepper of November 1, 2002 (page 135). Said trial report is issued by the defendant company through the manager, Agricultural Engineer [Nombre8] . It describes a cultivation trial of sweet pepper seeds, which are duly certified, and within it, the cultivation of the seeds was carried out using the usual procedure of the defendant company. As observations and recommendations, some practices that should be avoided were described, and they did not find any problem with the medium that affects the roots. Similarly, it was indicated that compaction with a roller negatively affects the plants in their germination, and it points out the need to pre-moisten the substrate so that it has uniform moisture present before filling the trays, detailing the method to be followed. It was made known to them that the stacking of trays affects them in terms of compaction and that a germination rate of 91% was obtained in good conditions. The observation was made that the producer uses growing media from various manufacturers. The recommendations lean towards indicating that crops should not be compacted with a roller and they must moisten the substrate beforehand in the manner explained there before filling the trays, and not apply irrigation afterward, as the producer has been doing. A Lettuce seed trial was also provided, called 001:02 of November 1, 2002 (page 146). In it, a good germination result was obtained, and the same recommendations were noted regarding the producer's agricultural practices.

An expert opinion was requested by the defendant, which is recorded from page 323 to 331, on which a hearing was given, without it being objected to by any of the parties. From the reading of said expert evidence, it is noted that its objective is: to determine whether the problems reported by Agroverde 2000 S.A. were caused by the characteristics of the substrate imported and sold by [Nombre4] Centroamericana S.A. or by poor handling of the same or another cause. It is specified by the expert that the field work was carried out between January 10, 2009, and February 13 of the same year at the plaintiff's facilities. The expert explains that he proceeded to visit other nurseries that develop the same productive process, interviewed representatives of the State Phytosanitary Service, and conducted other inquiries. He begins by indicating that the use of substrates for the production of vegetable seedlings is recent in the country, but it is currently a generalized practice. He cites the importance of good quality seedbeds (almácigos) for any agricultural project, since the success or failure of said project will depend on that, and for this reason, knowledge of the chemical, physical, and microbiological characteristics of that substrate is relevant, because in accordance with that, the plant development plan in greenhouses is programmed. In the specific case, the physical characteristics of the peat (substrate) provided by the defendant are questioned. He mentions that his claim is limited to studying the physical qualities of the substrate, because from the very results provided by the plaintiff, it is deduced that there are no problems with the chemical and microbiological qualities. The expert report indicates that granulometry and the type of material determine the physical characteristics of a substrate, and among those he mentions: thickness index, apparent density, real density, and moisture retention at different suction pressures, which are factors that allow the calculation of porosity and the air:water ratio of the substrate.

The opinion provides technical explanations of concepts regarding the composition of substrates (sustratos) and the beneficial or negative effects they produce on crops, and at this point concludes that in order to have a substrate with good physical characteristics, it must meet appropriate and balanced conditions that allow for the proper development of plants. The report describes that it was verified within the plaintiff's production process that the place where the seeds are stored meets the requirements. The expert describes the production process found in the defendant's nursery and noted that he observed the majority of the bales (pacas) that supposedly caused the damage to the plants. He indicated having observed 19 sacks of the 34 indicated in the lawsuit that the plaintiff held in her possession. He cites 7 are from lot V-J 1001505, 8 from lot V-J 10101505, two from lot V-J 1212505, and two from lot V-J 1201505. It is important to mention that said expert reported that he visited the facilities of the Ministry of Agriculture and Livestock (Ministerio de Agricultura y Ganadería) and spoke with engineer Ulises Jiménez Vega, who was in charge of taking the samples at Agroverde 2000 S.A., and was able to observe the custodied samples; subsequently, he appeared at the laboratory where the tests were conducted and found them in optimal conditions, and was provided, by Engineer Edgar Vega Zúñiga, who was in charge of the evaluation of the seedling development process, a copy of the report he prepared for that purpose. Subsequently, he proceeded to visit the greenhouses (invernaderos) of the State Phytosanitary Service (Servicio Fitosanitario del Estado) and recorded that the management conditions are acceptable. The expert proceeds to answer each of the questions that the defendant company requested be addressed, and from them, aspects of fundamental consideration for the resolution of this dispute (litis) are deduced. To the first question, he answered that it could have been possible that the cause of the plaintiff's problems was due to the supplied substrate (sustrato). He explains that the foregoing is deduced from the result of the physical analysis of the samples carried out by the MAG, which showed that in more than 80% there were particles smaller than 1mm and excessive moisture retention at three different suction pressures. He notes that the foregoing is serious, as it causes deficient aeration of the plant, and as a consequence, poor root development. In the second question, he affirms that a germination problem can occur in the same tray irregularly, in patches, or throughout the entire tray, because according to the results of the MAG analysis, the samples present between 80% to 82% of very fine material and between 18% and 20% of particles larger than 1 mm, and if it is poorly distributed within the bale, the noted germination situations can occur. The third question makes it clear that the damage occurring in the germination trays where development was non-uniform and patchy was not due to contamination, because the laboratory results did not show the presence of pathogens. He also noted that the management of fertilizers, agrochemicals, substrate preparation, and irrigation systems is done safely and in accordance with technical guidelines, and detailed controls and logs are kept for the seeds, where they are tracked by number, entry dates, packaging, and their destination. The fourth question is aimed at challenging the reliability of the investigations carried out in the laboratories of the State Phytosanitary Service (Servicio Fitosanitario del Estado), which used a 98-cavity tray in its studies, and whether that was not adding a new variable. The expert answers in this regard that the number of holes contained in a tray is not determinative for obtaining the desired results in the test, because the important thing is to know whether the problem presented in the different sampled lots is repeated or not due to the alleged physical problems. Regarding seed quality, he is asked whether seed certification and quality verification were necessary before the tests. The expert indicates that a seed quality analysis could have been good to give greater scientific formality to the evaluation, but that in this case it was not determinative, because according to inquiries, the seed at that time did not report problems of vigor or germination. And he adds that when a substrate (sustrato) has physical problems, it is not important whether lettuce, tomato, or chili seed is used, because the same symptoms can appear using other seeds. The expert answers the question of whether it was necessary to describe the laboratory procedure in the investigation, affirming that it was not, because they are professionals who prepare the medium and assume the results obtained. He adds that Engineer Edgar Vega told him that the rigorous procedure was used to prepare the medium for each of the six samples and their repetitions. The expert, in the question identified as 4-4, indicates that the irrigation system used in the analysis of the State Phytosanitary Service (Servicio Fitosanitario del Estado) did not influence the germination percentage result, because it ensures proper moistening of the plants in the trays. The expert answers the following question, which refers to the moment in the germination process at which the root damage in the lettuce plants was evaluated, stating that such evaluations can be done on the third or fourth day, and having done it 6 days later, as happened, was sufficient and adequate time to carry out such an evaluation. In the last question, the expert is questioned as to whether a procedure with a scientific method should have been carried out in the investigation of the State Phytosanitary Service (Servicio Fitosanitario del Estado) with certain aspects, such as the presence of a representative from the commercial sector. The answer is that all investigation requires a scientific method, but an experimental design and statistical analysis are not an indispensable requirement in all cases. He added that this is one of those cases where it is not necessary, as two repetitions, as seems to have been done, are sufficient to have the necessary technical certainty and analyze the results. It is mentioned that it would have been interesting to introduce another substrate (sustrato), but that in the specific case, the analyses performed are irrefutable proof that the problem originated in the physical characteristics of the various lots of the questioned substrate (sustrato), and regarding seed quality, he believes it does not influence the outcome, since the germinations were good, and that the aspects of irrigation, fertilization, and light do not disprove that the analyses were adequate. This Court considers, with respect to the expert opinion (peritaje), the same as what is indicated in the judgment, regarding the lack of accreditation in the case file of the causal link (nexo causal), which would require having the certainty that the problems generated in the plaintiff company's plants during the alleged period were exclusively a consequence of the substrate (sustrato) sold. The foregoing because the noted problems began in the year 2002 and the expert issues an opinion based on what was observed in the plaintiff's production process in the year 2009, and the agricultural practices from the year 2002 to 2006 could not be evaluated to determine the causal link (nexo causal) solely with respect to the mentioned substrate (sustrato). Likewise, it is also not possible to know the certification of all the seeds involved in the damaged plants, because in the deposition (prueba confesional) of Mr. Soto Bravo, it was accepted that the seeds came from various clients and “some” came certified (questions 3 and 4, folio 384), and that the agricultural practices recommended by the defendant's technical manager (regente) were not always followed, as they had a different technical opinion (questions five and six, folio 389). Regarding the practices recommended in the cultivation process, the case file contains documentary evidence from folio 135 to 139, trials prepared by the defendant company in which the plaintiff was recommended to make a change in some aspects, such as no compaction with a roller and pre-wetting of the substrate (sustrato), which were not permanently adopted by the plaintiff. There is no clarity from the evidence in the case file that said practices were followed and that the causal link (nexo causal) of damage to the plants is attributable solely to the substrate (sustrato) in question. The appellant argues that its claim is demonstrated by the technical evidence; however, this Court considers that although it can be deduced from it that the substrate (sustrato) samples show a deficiency in their physical qualities, which cause problems in plants, the lack of knowledge of aspects such as the origin and quality of the seeds used from 2002 to 2006, or the plaintiff's method of preparing the substrate (sustrato) during those periods, influenced the negative germination results. The expert evidence (prueba pericial) and microbiological analyses showed that these samples did not present pathogenic elements; however, these were only some samples corresponding to the final periods of the commercial relationship in 2006, without knowing the status of previous conditions regarding seed quality and agricultural practices since the year 2002. The expert evidence (prueba pericial) has the value of demonstrating the conditions of the plaintiff's nursery in the year 2009, the status of the State's nurseries at that same time, as well as the validation of the correct agricultural practices at that moment, but it is not possible to deduce from said evidence the prevailing conditions during the year 2002 to 2006. The laboratory tests are irrefutable in their conclusions, but their value cannot prove that the damage to the seedlings was solely due to the conditions of the substrate (sustrato) supplied by the defendant company on the dates when the damages occurred. Therefore, the grievance that the technical and expert evidence in the case file is sufficient is not accepted. Regarding the grievance concerning the deposition (prueba confesional) and that the agricultural practices were deduced to be correct from it, it is indicated that upon reviewing it (folio 387), it is deduced that aspects that could influence the seedling crops are unknown, such as seed quality, water, irrigation systems, agricultural practices, which were not studied at the time the damages occurred. This was accepted by the deponent in his answer to question eighteen. The appellant's grievance when stating that such aspects are not important, but rather that the only thing to consider was whether the deficiency of the substrate (sustrato) caused the claimed damages, is not accepted. This Court considers that to consider the causal link (nexo causal) proven, it is necessary to verify that the indicated aspects did not also contribute to the generation of the damages found in the analyses during the period 2002 to 2006. For its part, the grievances regarding what the testimonial evidence (prueba testimonial) proved are also not shared, because it is not considered that the analyses and procedures followed by officials Ulises Jiménez Jiménez and Edgar Julián Vega were disproved, or that the conditions of the State's greenhouses were not optimal; the results obtained are not questioned. What is considered is that such analyses are not sufficient to determine that the damages caused from 2002 to 2006 were solely due to the substrate (sustrato), even if it had been proven that the substrate (sustrato) did not have an adequate physical composition. Regarding the statement of [Nombre9] (folio 432), although he gives a clear and compelling statement in pointing out that the germination problem was due to the substrate (sustrato), he indicates that the damages began to worsen in 2004, and that before 2005, material had been purchased from CAFESA but it was worse than that from [Nombre4]. Although it is shown that he is a person knowledgeable in his work, he affirmed that he has not received technical training and that regarding the amount of water needed, “he does it purely by eye.” This Court agrees with the value given to this statement. Regarding the statement of [Nombre10], it is considered that his deposition in the specific case cannot undermine what was decided, because although he declared having suffered damages with said product, there is no certainty about the conditions under which the nursery he mentioned owning was managed. His grievance is rejected. This Court considers that the testimony of the person who acted as the defendant's technical manager (regente), [Nombre8], was adequately evaluated, because it was deduced from it that there were problems with the product, but that the agricultural practices of pre-wetting and compaction were not necessarily followed, which affects the proof of the possibility of contributory fault (culpa de la víctima) in the damage caused and breaks the causal link (nexo causal) that must be proven. As indicated in the appealed judgment, the expert evidence (prueba pericial) was based on granting validity to the analyses of the State Phytosanitary Service (Servicio Fitosanitario del Estado), but it is not possible to deduce from it that the circumstances and practices of the plaintiff's nursery during 2002 to 2006 did not contribute to the generation of the damages caused in the germinated plants. Therefore, the reproach of the appellant, when indicating that the evidentiary assessment carried out by the judge was made against the proofs of science and technique due to ignorance, is also not accepted.

**VII- Damages (Daños y perjuicios).** The grievances in this regard are not shared, because since this Tribunal has not found proven the causal link (nexo causal) that must exist to have granted the claim, the rejection of the alleged damages (daños y perjuicios), which are the main claim of a proceeding of this nature, is appropriate.

**VIII- Costs (Costas).** Since the appellant plaintiff was not ordered to pay damages (daños y perjuicios) in favor of the defendant, its grievance is rejected. With respect to costs (costas), this Court notes that although the claim was not granted, the party had cause to litigate, as it had a series of technical indications and scientific evidence that gave it grounds to file the claim. Added to the foregoing is the fact that the substrate (sustrato) supplied by the defendant did have deficiencies in its physical qualities that can affect the germination of seedlings (almácigos); this is deduced from the physical analyses of the State's official laboratory and the criteria expressed in the expert evidence (prueba pericial). Furthermore, the expert himself stated that the technique of growing in substrates (sustratos) like the one acquired by the plaintiff was a recent practice in the country. Therefore, based on Article 55 of the Ley de Jurisdicción Agraria, and considering the existing evidence in the case cited regarding the deficiency of the product, it is resolved without special award of costs (condenatoria en costas), and the judgment must be revoked regarding said award against the plaintiff.

**IX-** For the reasons stated, the evidence offered for a better resolution, consisting of receiving the statement of Engineer Luis Fernando Avendaño offered by the plaintiff and official letter DSFE 001.2010 offered by the defendant, must be rejected, as both evidentiary measures are unnecessary. The judgment must be partially revoked regarding the award of [Nombre5] and, in its place, it is resolved without a special award of costs (condenatoria en costas). In all other matters subject to appeal, the judgment is affirmed.

**THEREFORE (POR TANTO):** The evidence offered for a better resolution is rejected. The appealed judgment is partially revoked only regarding the award of [Nombre5] personal and procedural costs against Agroverde Dos Mil S.A. In its place, it is resolved without a special award of costs (condenatoria en costas).

In all other matters subject to appeal, the judgment is affirmed.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><br /><span style="font-family:Arial; font-weight:bold">[Nombre17]</span><span style="font-family:Arial; font-weight:bold; -aw-import:spaces">&#xa0;&#xa0; </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><span style="font-family:Arial; color:#010101">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><span style="font-family:Arial; font-weight:bold; color:#010101">DAMARIS VARGAS VÁSQUEZ</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101"> ALEXANDRA ALVARADO PANIAGUA</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial; color:#010101">EXPEDIENTE EXPN2</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial; color:#010101">PROCESO ORDINARIO</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial; color:#010101">PROMOVENTE: AGROVERDE DOS MIL SA</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial; color:#010101">CONTRA: V J CENTROAMERICA SA</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial; color:#010101">[Nombre18]</span><span style="font-family:Arial; color:#010101; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; color:#010101">/</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> [Nombre19] + [Nombre19] </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span>&#xa0;</span><span>&#xa0;</span></p><table cellspacing="0" cellpadding="0" style="width:383.25pt; border:1pt solid #010101; border-collapse:collapse"><tr style="height:12.75pt"><td colspan="4" style="width:381pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:0.75pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial">Notice of Notification</span></p></td></tr><tr style="height:12.75pt"><td style="width:188.25pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:0.75pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">Party or others</span></p></td><td style="width:62.25pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:0.75pt 0.75pt 0.75pt 1pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">Result</span></p></td><td style="width:62.25pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:0.75pt 0.75pt 0.75pt 1pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">Date</span></p></td><td style="width:62.25pt; border-bottom:1pt solid #010101; padding:0.75pt 0.75pt 0.75pt 1pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">Server</span></p></td></tr><tr style="height:28.5pt"><td style="width:188.25pt; border-right:1pt solid #010101; padding:0.75pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">PLAINTIFF</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">[Telf1]</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">DEFENDANT</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span style="font-family:Arial">[Telf2]</span></p></td><td style="width:62.25pt; border-right:1pt solid #010101; padding:0.75pt 0.75pt 0.75pt 1pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span>&#xa0;</span></p></td><td style="width:62.25pt; border-right:1pt solid #010101; padding:0.75pt 0.75pt 0.75pt 1pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span>&#xa0;</span></p></td><td style="width:62.25pt; padding:0.75pt 0.75pt 0.75pt 1pt; vertical-align:bottom"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:8pt"><span>&#xa0;</span></p></td></tr></table><p style="margin-top:0pt; margin-bottom:0pt"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span>&#xa0;</span><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial; color:#010101">&#xa0;</span></p></div></body></html> **VI.-** In the present case, the plaintiff's claims were upheld by a majority by the Court, which considered that the operation of the electronic banking system presents such a dangerousness that it allows the damages caused to be imputed to the Bank. ......... . As prescribed by numeral 35 of the Consumer Protection Law (Ley de Protección al Consumidor), there has been an injured party by reason of the service, which upon being used (and in view of its risky nature) produced a significant injury to the party appearing in the proceeding as plaintiff. Consequently, instead of an improper interpretation of the rule, the article has been given its right and correct meaning..... In addition to the foregoing, it cannot be overlooked that the emergence of liability depends on the existence of unlawfulness (antijuridicidad), with objective liability not being the exception, it being necessary to determine, in this case, whether the affected party was under a legal obligation to bear the damage, as is drawn from the principle of patrimonial indemnity. This basic unlawfulness (antijuridicidad) is identified, in the present case, with the risk existing in the operation of the service, as is inferred from the body of evidence itself, the improper evaluation of which is claimed. It is for what has been indicated up to this point that the arguments put forth by the appellant to the effect that the duty of safety is of a commercial nature and not a legal one, are not receivable. As already advanced, the development of actions undertaken by a subject of law, and which foreseeably have the potential to cause damages, implicitly carries the duty to guarantee their safety. In this line, it is not a matter of the defendant demonstrating the diligence it has exercised, since this is an aspect typical of a subjective system of liability.......**VII.-** In sum, in the specific case, the concurrence of an exonerating circumstance of liability was not demonstrated, such as would be the fault of the victim, the act of a third party, or force majeure. Although the first is alluded to, there do not exist, within the body of evidence, sufficient elements to affirm that the victim participated in the production of the damage. Had any of these circumstances been proven, it would be impossible to establish a causal link between the Bank's conduct and the injury, and thus a duty to compensate on the part of the entity could not arise. As already stated, the existence of an exonerating circumstance implies that the cause of the loss can be linked to another subject, or what is the same, that the defendant is unrelated to the damage caused. In any event, in the present case, the concurrence of an exonerating cause was not proven, nor that the Consumer Protection Law (Ley de Protección al Consumidor) is not applicable, such that, given the existence of damage as a consequence of a risky service, in the terms of numeral 35 of the cited regulatory body, no improper application of the legal regime by the trial judges is appreciated." (Sala Primera de Casación, No. 1098-09, at 2:45 p.m. on October 22, 2009). The ruling of that high Court, which is shared by this venue and finds its legal basis in Article 41 of the Political Constitution and Article 35 of the Effective Consumer Law (Ley Efectiva del Consumidor), in addition to what is specifically prescribed for the activity carried out by the defendant company in the Phytosanitary Protection Law (Ley de Protección Fitosanitaria) which reads: "Article 32. Those who import, manufacture, formulate, repackage, redistribute, store, transport, sell, and apply chemical, biological, or related substances for agricultural use, shall be obligated to compensate for the damages and losses that, by their actions or omissions, they cause to agriculture, livestock, human health, and the environment." For its part, on the topic of damage and risk, this Court has reviewed some relevant doctrinal criteria: "V. Modern doctrine, for its part, has supported the objectification of liability, by including risk among the factors of imputability and legal attribution of damage, apart from fault (culpa) and willful misconduct (dolo). It has even been proposed to include other objective factors such as: guarantee, equity, abuse of right, and excess of normal tolerance between neighbors. Damage is viewed, then, not from the perspective of the perpetrator's act but from the position of the injured party, so as to ensure that every damage caused unjustly is repaired. From another point of view, fault (culpa) has been separated from the unlawfulness of the act, giving the latter a more important role. 'Once the equivalence between the unlawfulness of the act and fault (culpa) was broken, conduct acquired an autonomous physiognomy, detached from the subjective profile of the agent's will, to constitute a simple means, cause, or connection criterion between a subject held liable and a certain harmful event to be compensated.' (Franzoni (Massimo), Dangerous Activity, in Liability for Damages in the Third Millennium, Abeledo Perrot, Buenos Aires, 1997, p.120). Thus, there is talk of the Theory of Risk, which does not displace fault (culpa) but rather complements it, and is summarized as the duty of whoever creates a risk to indemnify the damage they cause to a third party. 'Risk is a cause of imputability when, due to the performance of certain causes and determined activities, qualified as dangerous, damage is produced. The damage in these circumstances must be compensated, not because its agent has incurred in willful misconduct (dolo) or fault (culpa), but because the legal order must protect the community from the development of dangerous activities, so that whoever performs them incurs liability if damage is caused by virtue of such performance... Liability derived from risk does not depend on the willful misconduct (dolo) or fault (culpa) of the agent but originates in the mere occurrence of damage consequent to the dangerous activity. This consideration brings with it a special regime of proof, according to which, by the mere exercise of the unsafe activity, the agent's fault (culpa) is presumed, exonerating the victim from the task of demonstrating improper conduct. It is up to the agent to rebut the presumption...' (Cubides Camacho Jorge, Imputable Harmful Act in On Damage, Editora Jurídica, 1st Ed., Colombia, 2001, p.260). For other authors, 'the causal relationship is an element of the unlawful act and of contractual breach that links the damage directly with the unlawful act, and indirectly with the element of subjective imputation or objective attribution. It is the binding factor that makes the damage and fault (culpa), or where appropriate the risk, integrate into the unity of the act that is the source of the obligation to indemnify' (see Bustamante Alcina (José), The Profile of Civil Liability at the End of the 20th Century in Liability for Damages in the Third Millennium, Abeledo Perrot, Buenos Aires, 1997, pp. 24 to 26)." ( Voto 541-F-11 Tribunal Agrario).

**VI-** This venue considers that both the plaintiff and the defendant companies contribute to the development of a strategic and fundamental activity for the Costa Rican state, as they ensure the nation's food security and have under their responsibility the duty to promote the development of agricultural activity in such a way that the phytosanitary condition of plants is protected. To this end, nurseries, seed banks, seedbeds (almácigos), and companies of this nature are regulated and protected by the State through the provision of a specialized technical state structure to assist and control their activities and avoid serious problems such as the propagation of pests, protecting human health and the environment. For this purpose, a series of laws and regulations have been established aimed at establishing the technical and legal provisions of mandatory observance for producers. Within that normative framework, we find the Phytosanitary Protection Law (Ley de Protección Fitosanitaria) number 7664 and the repealed Nursery Regulation and the current decree number 33927-MAG Regulation on Nurseries, Seedbeds, Seedbeds, and Bud Banks (Reglamento de Viveros, Almácigos, Semilleros y Bancos de Yemas) published in La Gaceta of October 30, 2007. Said regulation in its fourth article establishes the obligation of these establishments dedicated to the activities they regulate to be duly registered before the Nursery Program and to comply with specific phytosanitary measures for each activity. Article 14 of this regulation establishes the power of the State Phytosanitary Service to take samples that will be taken to the Official Laboratories for the diagnosis of the presence of pests or diseases, and for this, phytosanitary inspectors are empowered. This venue observes that the various grievances are related to the value given to the elements of proof by the trial judge, who did not consider it accredited that the blamed damage of the problems in the germination of the seedbeds (almácigos) were caused exclusively by the use of the growing media (sustrato) sold by the company VJ Centroamericana S.A. The appellant's disagreement lies in that the trial court did not consider the scientific, technical, and expert evidence to find it accredited that the growing media (sustrato) caused the damage to the plaintiff's nursery plants during the period from January 2002 to 2006, as well as the value given to the testimonies and documentary evidence. As was explained in the previous consideration, the exonerating circumstances of liability for the defendant company would be force majeure, fault of the victim, or the act of a third party, which must be studied to determine if they are present and manage to break the causal link between the conduct and the damage claimed by the plaintiff. The defendant party has alleged in its favor fault of the victim and the act of a third party, since, despite having accepted that the growing media (sustrato) sold had problems in its physical composition, it argues that the germination problems cannot be attributed solely to the growing media (sustrato). They bring up that the plaintiff in its production process received seeds from its various clients, had irrigation problems, and did not follow their technical instructions for the use of the product and developed poor agricultural practices in its nurseries. Grievances. Regarding the lack of evaluation of the scientific and technical evidence and having with it accredited the causal link. The party grieves that the trial court stated it lacked sufficient evidence to find the facts accredited. In the sixth consideration of the judgment, it was reasoned that by virtue of the confession evidence (prueba confesional), it was accredited that the plaintiff company was supplied seeds by its clients. It also found proven the commercial relationship between the parties from January 2002 to March 2006, in which the sale occurred, among other products, of the growing media (sustrato) used in the plaintiff's production process. In the ruling, these conclusions are obtained from the documentary evidence of invoices and confession evidence (prueba confesional). It was admitted by the defendant that 4,513 sacks of said product were purchased. It is described that problems occurred with the growing media (sustrato) that affected germination. In this aspect, it is indicated in the judgment that the specific dates on which such inconveniences occurred were not demonstrated, nor the quantity of seeds and seedlings (plántulas) that suffered these circumstances. The lack of clarity regarding the specific date on which this problem began in the seedbeds (almácigos) of Agroverde Dos Mil S.A. is recorded. The trial court bases this conclusion on the testimony of Miguel Ángel Obregón Gómez, who indicated that such moisture saturation problems in the roots had been occurring since 1999. The trial court also points out that in 1999, the defendant did not sell the growing media (sustrato) to the plaintiff. It also relies on the testimony of Ronald Castro Rodríguez, who testified that the major problem arose from late 2004 to early 2005, which is when the problem occurred. The appellant party grieves that the date indicated by the witness Obregón Loría was due to a lapse, since in 1999 there was still no commercial relationship with the seller of the growing media (sustrato) and the defendant itself indicates the dates on which the sales occurred. This venue considers that such a grievance cannot be accepted, since it is thus recorded in the corresponding minutes and cannot be varied, as all parties to the proceeding had knowledge of such statements and it was never objected to or requested that the date mentioned by that witness be corrected. What has been recorded is the existence of the commercial relationship between the contending parties and that upon ending the commercial relationship, the defendant company sold the plaintiff the growing media (sustrato) to which the germination problems are attributed, as recorded in the appealed ruling. The judgment indicates that it was also not accredited that the alleged damage to the plants was due exclusively to the growing media (sustrato). Furthermore, it was pointed out that it was accepted that the technical recommendations given for the use of the growing media (sustrato) by the regent of the selling company were not followed. The appellant party grieved in this sense, that in the judgment, importance was given to the lack of demonstration of the dates of the damage, when what was important was to determine that the deficiencies in the physical characteristics of the growing media (sustrato) caused the problems of moisture retention, inadequate drainage, and aeration causing damage to the seedlings (plántulas). It pointed out the lack of evaluation of evidence "D" Physical Analysis of the growing media (sustrato), the expert evidence, and confession evidence (prueba confesional). In this aspect, the appellant is not correct. To grant this claim, the causal link between the conduct and the damage caused must be clear. From the evaluation of the physical analysis evidence of the growing media (sustrato) and the expert evidence presented in this matter, it has been demonstrated that the analyzed growing media (sustrato) had deficient physical qualities and that these could cause damage to the germination of the plants. The trial court is correct in reasoning in the judgment that the evidence was not sufficient to accredit that the damage was caused solely by said growing media (sustrato) and that it is not clear whether the procedure applied by the plaintiff to the growing media (sustrato) in its facilities coincided with that developed by the State in its study. The foregoing, as accepted by the plaintiff party in its claim, that the seeds used were given by various clients and that the recommendations in the process of modifying agricultural practices were not accepted by the regent, as they did not agree with them. On the other hand, as pointed out in the judgment, the samples analyzed were taken after the period claimed by the plaintiff, since the problems began in 2002, and the physical analysis evidence identified as D is from 2006. Added to this, the expert evidence is from March 2009. Although it is determined that the product sampled by the State was deficient, it is not possible to deduce for the reasons indicated that the damage to the plants is due to the growing media (sustrato) alone, or that situations unrelated to the product did not intervene in the germinated plant. Regarding the evidence that was not given the value it had, the following are mentioned in the appeal: evidence A- Biological test carried out at the Ministry of Agriculture and Livestock, State Phytosanitary Service (Servicio Fitosanitario del Estado), Phytosanitary Diagnosis, Greenhouses dated June 5, 2006. (folio 4), which reports on the result of the sowing of Lettuce Lactuca Sativa variety Gulf Stream in growing media (sustratos) supplied by the company Agroverde Dos Mil S.A. in five batches identified with numbers 1975 to 1980. Said report concludes that the root damage present in the non-germinated plants "may be" as a consequence of the physical or chemical characteristics of the growing media (sustrato), since no damage caused by pathogens was observed in the foliar part, and recommends a physical, chemical, and microbiological analysis of the growing media (sustratos). In the Microbiological Analysis. Evidence B (folio 5), it was concluded that no pathogenic fungi or bacteria (causing pests and diseases in plants) were found. The Mineral Chemical Analysis of the organic growing media (sustratos) identifying the same described batches Evidence C was provided (folio 6). In what is pertinent, the Physical Analysis. Evidence D (folio 7), moisture retention was determined. On folio 234, there is acta number 21 of April 28, 2006, from the State Phytosanitary Service (Servicio Fitosanitario del Estado). In it, it is recorded that the official of that dependency, Engineer Ulises Jiménez Jiménez, appeared at Agroverde Dos Mil S.A. for the taking of samples for the aforementioned INTA laboratory analysis to determine the physical, chemical, and microbiological characteristics of the sampled batch. Indicating that the sampled batches are: 1212505, 1312505, 0912505, 1001505, 11011505, 1201505 and these samples are given the official seal (marchamo) from 1975 to 1980, describing which corresponds to each batch, and mentioning that they remain in the custody of the MAG and that the sampled material corresponds to the growing media (sustrato) produced in Canada and sold by VJ- Centroamericana S.A. The defendant party provided with the answer to the claim two trials that were carried out in 2002 by virtue of the problems occurring with plant germination. Namely, there is Trial 002-02: Sweet Chile Pepper dated November 1, 2002 (folio 135). Said trial report is issued by the defendant company through the regent Agronomist Engineer Manuel Antonio Salas Ajún. It describes a cultivation trial of sweet pepper seeds, which are duly certified, and in it, the cultivation of the seeds was carried out using the defendant company's usual procedure. As observations and recommendations, some practices that should be avoided were described, and it was noted that no problem was found with the medium affecting the roots. Likewise, it was indicated that compaction with a roller affects the plants negatively in their germination and points out the need to pre-moisten the growing media (sustrato) so that it has uniform moisture before filling the trays, detailing the method to follow; it was made known that the stacking of trays affects their compaction, and that 91% germination was obtained under good conditions. The observation was made that the producer uses cultivation media from various manufacturers. The recommendations lean toward indicating that crops should not be compacted with a roller and must be moistened prior to filling the trays with the growing media (sustrato) in the manner explained there, and not to apply irrigation afterwards, as the producer has been doing. Also provided was a Lettuce seed trial called 001:02 dated November 1, 2002 (folio 146). In it, a good germination result was obtained, and the same recommendations were noted regarding the producer's agricultural practices. An expert opinion (dictamen pericial) was requested by the defendant, recorded from folio 323 to 331, on which a hearing was granted, without it being objected to by any of the parties. From a reading of said expert evidence, it is denoted that its objective is: to determine whether the problems reported by Agroverde 2000 S.A. were caused by the characteristics of the growing media (sustrato) imported and sold by VJ Centroamericana S.A. or by poor management of the same or another cause. The expert specifies that the field work was carried out between January 10, 2009, and February 13 of the same year at the plaintiff's facilities. The expert explains that he proceeded to visit other nurseries that carry out the same production process, interviewed representatives of the State Phytosanitary Service (Servicio Fitosanitario del Estado), and conducted other inquiries. He begins by indicating that the use of growing media (sustratos) for the production of vegetable seedlings (plántulas de hortalizas) is recent in the country, but is now a generalized practice. He cites the importance of good quality seedbeds (almácigos) for any agricultural project, since the success or failure of that project will depend on it, and therefore, knowledge of the chemical, physical, and microbiological characteristics of that growing media (sustrato) is relevant, as in accordance with this, the development plan for the plants in the greenhouses is programmed. In the specific case, the physical characteristics of the peat (turba) (growing media (sustrato)) provided by the defendant are questioned. He mentions that his claim is limited to studying the physical qualities of the growing media (sustrato), inasmuch as from the very results provided by the plaintiff, it is deduced there are no problems with the chemical and microbiological qualities. The expert report indicates that granulometry and the type of material determine the physical characteristics of a growing media (sustrato), and among those he mentions: thickness index, apparent density, real density, and moisture retention at different suction pressures, which are factors that allow calculating the porosity and the water:air ratio of the growing media (sustrato). The expert opinion (dictamen) provides technical explanations of concepts of the composition of growing media (sustratos) and the beneficial or negative effects they produce on crops, and at this point, he concludes that for a growing media (sustrato) to have good physical characteristics, it must meet appropriate and balanced conditions that allow the adequate development of plants. The report describes that it was verified within the plaintiff's production process that the place where the seeds are stored meets the requirements. The expert describes the production process found in the defendant's nursery and noted that he observed the majority of the bales that supposedly caused the damage to the plants. He pointed out having observed 19 sacks of the 34 that were indicated in the claim as held by the plaintiff. He cites 7 are from batch V-J 1001505, 8 from batch V-J 10101505, two from batch V-J 1212505, and two from batch V-J 1201505. It is important to mention that said expert reported that he visited the facilities of the Ministry of Agriculture and Livestock and spoke with engineer Ulises Jiménez Vega, who was in charge of taking the samples at Agroverde 2000 S.A. and was able to observe the samples held in custody; subsequently, he appeared at the laboratory where the trials were conducted and found them in optimal conditions, and was provided by Engineer Edgar Vega Zúñiga, who was in charge of evaluating the seedling (plántulas) development process, with a copy of the report he prepared for that purpose. Subsequently, he proceeded to visit the greenhouses of the State Phytosanitary Service (Servicio Fitosanitario del Estado) and left a record that the management conditions are acceptable. The expert proceeds to answer each of the questions that the defendant company requested be addressed, and from them, aspects of fundamental consideration for the resolution of this dispute can be deduced. To the first question, he responded that it could have been possible that the cause of the plaintiff's problems was the growing media (sustrato) supplied. He explains that the foregoing is deduced from the result of the physical analysis of the samples carried out by the MAG, which showed that in more than 80%, particles smaller than 1mm were present and there was excessive moisture retention at three different suction pressures. He points out that this is serious, as it causes deficient aeration of the plant, and as a consequence, poor root development.

In the second question, he affirms that a germination problem can occur in the same tray irregularly, in patches, or throughout the entire tray, because according to what the results of the MAG analysis showed, the samples present between 80% and 82% very fine material and between 18% and 20% particles larger than 1 mm, and if it is distributed poorly within the bale, the noted germination situations can occur. The third question makes it clear that the damages occurring in the germination trays where development was non-uniform and patchy were not due to contamination, since the laboratory results did not show the presence of pathogens. He also noted that the handling of fertilizers, agrochemicals, substrate (sustrato) preparation, and irrigation systems is done safely and in accordance with technical guidelines, and that detailed control logs and records are kept for seeds, tracking them by number, entry dates, packaging, and destination. The fourth question is aimed at challenging the reliability of the research conducted in the laboratories of the State Phytosanitary Service (Servicio Fitosanitario del Estado), which used a 98-cavity tray in its studies, and whether that was adding a new variable. The expert (perito) answers in this regard that the number of cells contained in a tray is not determinative for obtaining the desired results in the test, as what is important is knowing whether or not the problem presented in the different sampled lots due to the alleged physical problems repeats itself. Regarding seed quality, it is asked whether certification of seeds and their quality was necessary before the tests. The expert indicates that a seed quality analysis could have been good to give greater scientific formality to the evaluation, but that in this case it was not determinative, since according to inquiries the seed at that time did not report problems of vigor or germination. And he adds that when a substrate has physical problems, it is not important whether lettuce, tomato, or chili seed is used, since the same symptoms can appear using other seeds. The expert answers the question of whether describing the laboratory’s procedure in the investigation was necessary, affirming that it was not, since the professionals prepare the medium and assume the results obtained. He adds that engineer Edgar Vega told him that the standard procedure was used to prepare the medium for each of the six samples and their repetitions. The expert, in the question identified as 4-4, indicates that the irrigation system used in the analysis by the State Phytosanitary Service did not influence the result of the germination percentage, since it ensures proper moistening of the plants in the trays. The expert responds to the following question, which refers to the moment in the germination process at which the damage to the root of the lettuce plants was evaluated, that such evaluations can be done on the third or fourth day, and having done it at 6 days later, as occurred, was sufficient and adequate time to carry out such evaluation. In the last question, the expert is asked whether a procedure should have been carried out in the investigation by the State Phytosanitary Service using a scientific method with certain aspects, such as the presence of a representative from the commercial sector. The answer is that every investigation requires a scientific method, but an experimental design and statistical analysis are not an indispensable requirement in all of them. He added, this is one of those cases in which it is not necessary, since two repetitions, as seems to have been done, are enough to have the necessary technical certainty and analyze the results. It is mentioned that it would have been interesting to introduce another substrate, but that in the specific case, the analyses performed are irrefutable proof that the problem originated in the physical characteristics of the various lots of the questioned substrate, and regarding seed quality, he estimates it has no influence, since the germinations were good, and that the aspects of irrigation, fertilization, and light do not invalidate that the analyses were adequate.

This Court (sede) considers, with respect to the expert opinion (peritaje), the same as is noted in the judgment, regarding the lack of accreditation in the record of the causal link (nexo causal), which would require having the certainty that the problems generated in the plaintiff company’s plants during the alleged period were exclusively a consequence of the substrate sold. The foregoing, because the noted problems began in the year 2002, and the expert issues an opinion based on what was observed in the plaintiff's production process in the year 2009, and the agricultural practices from 2002 to 2006 could not be evaluated so as to determine the causal link solely with respect to the substrate in question. Likewise, it is also not possible to know about the certification of all the seeds involved in the damaged plants, because in the testimony (prueba confesional) of Mr. Soto Bravo, it was accepted that the seeds came from various clients and “some” came certified (questions 3 and 4, folio 384), and that the agricultural practices recommended by the defendant's technical advisor (regente) were not always followed, as they had a different technical criterion (questions five and six, folio 389). Regarding the practices recommended in the cultivation process, the record contains documentary evidence on folios 135 to 139 of trials prepared by the defendant company, in which it recommended that the plaintiff proceed to make a change in some aspects, such as no compaction with a roller and the pre-wetting of the substrate, which were not permanently adopted by the plaintiff. There is no clarity with the evidence in the record that these practices were followed, and that the causal link of damages to the plants is accredited solely to the substrate in question.

The appellant argues that the technical evidence proves their claim; however, this Court considers that, although it can be deduced from it that the substrate samples show a deficiency in their physical qualities, which produce problems in the plants, the lack of knowledge of aspects such as the origin and quality of the seeds used from 2002 to 2006, or the manner of substrate preparation by the plaintiff during those periods, influenced the negative germination results. The expert evidence (prueba pericial) and microbiological analyses showed that those samples did not present pathogenic elements; however, those were only some samples corresponding to the last periods of the commercial relationship in 2006, without knowing the state of the prior conditions regarding seed quality and agricultural practices from the year 2002. The expert evidence has the value of demonstrating the conditions of the plaintiff’s nursery (vivero) in the year 2009, the state of the State nurseries at that same time, as well as the validation of the correct agricultural practices for that moment, but it is not possible to deduce from said evidence the prevailing conditions during the years 2002 to 2006. The laboratory tests are irrefutable in their conclusions, but their value cannot prove that the damage to the seedlings was due solely to the condition of the substrate supplied by the defendant company on the dates when the damages occurred. Therefore, the grievance that the technical and expert evidence in the record is sufficient is not accepted.

Regarding the grievance about the confessionary evidence (prueba confesional) and that it proves the agricultural practices were correct, it is noted that upon reviewing it (folio 387), it can be deduced that aspects which could influence seedling crops—such as seed quality, water, irrigation systems, agricultural practices—are unknown, as they were not studied at the moment the damages occurred. The deponent (confesante) accepted this in his answer to question eighteen. The appellant’s grievance when stating that such aspects are not important, but that the only thing to consider was whether the substrate deficiency caused the claimed damages, is not accepted. This Court considers that, to have the causal link proven, it is required to verify that the noted aspects did not also contribute to the generation of the damages found in the analyses during the 2002 to 2006 period.

For its part, the grievances regarding what the testimonial evidence proved are also not shared, as it is not considered that the analyses and procedures followed by officials Ulises Jiménez Jimenez and Edgar Julián Vega were discredited, or that the conditions of the State greenhouses (invernaderos) were not optimal; the results obtained are not questioned. What is considered is that such analyses are not sufficient to determine that the damages caused from 2002 to 2006 were solely due to the substrate, even if it had been proven that the substrate did not have an adequate physical composition. Regarding the statement of Ronald Castro Rodríguez (folio 432), although he gives a clear and forceful statement in pointing out that the germination problem was due to the substrate, he notes that the damages began to worsen in 2004, and that before 2005 material had been purchased from CAFESA, but it was worse than that from VJ. Although he is shown to be a person knowledgeable in his work, he stated that he has not received technical training and that regarding the amount of water needed, he does it “purely by eye.” This Court agrees with the value given to this statement.

Regarding the statement of Ana Isabel Parajeles Zumbado, it is considered that her deposition in the specific case cannot serve to discredit the ruling, because although she declared having suffered damages with said product, there is also no certainty of the conditions under which the nursery she mentioned owning was managed. Her grievance is rejected. This Court considers that the testimony of Manuel Antonio Salas Ajún, who acted as the defendant's technical advisor, was properly valued, since it was deduced from it that there were problems with the product, but that the agricultural practices of pre-wetting and compaction were not necessarily followed, which affects the accreditation of the possibility that there is contributory fault of the victim in the damage caused and breaks the causal link that must be proven. As indicated in the appealed judgment, the expert evidence was based on granting validity to the analyses of the State Phytosanitary Service, but it is not possible to deduce from it that the circumstances and practices of the plaintiff's nursery during 2002 to 2006 did not contribute to the generation of the damages caused in the germinated plants. Therefore, the reproach of the appellant when indicating that the evidentiary assessment carried out by the judge is made against the tests of science and technique due to ignorance is also not accepted.” d) That the suspension of the simple executory judgment and its effects be ordered, a proceeding corresponding to case file number EXPN1, because it refers to an invoice for a product that did not work; and that the defendant did not proceed to remove it despite having been authorized to do so, and it is precisely the product whose deficiencies have led to the filing of this lawsuit. e) That the defendant company be ordered to pay both costs. f) That a writ of annotation of the present ordinary lawsuit be prepared against the properties to be indicated", (folios 19 to 20, and 577 to 578).- 2.- The defendant company answered the lawsuit by means of the brief at folios 172 to 186, and filed the defenses of statute of limitations (prescripción) and expiration (caducidad).

3.- The first-instance judge María Carolina Hurtado García, in a judgment at thirteen hours and forty-eight minutes on May twenty-six, two thousand ten, resolved: "THEREFORE: In accordance with the foregoing, the defense of statute of limitations is rejected, and the defense of lack of right is granted. The present ordinary lawsuit filed by AGROVERDE DOS MIL SOCIEDAD ANONIMA against [Nombre4] CENTROAMERICA SOCIEDAD ANONIMA is declared without merit in all its aspects. The plaintiff company Agroverde Dos Mil S. A. is ordered to pay the personal and procedural costs ".

4.- The plaintiff filed an appeal with an express indication of the reasons on which it is based to refute the thesis of the lower court, (folios 596 to 626).- 5.- In the processing of the proceeding, the legal requirements have been observed, and no errors or omissions capable of producing the nullity of the judgment are noted.- Judge Castro García writes, and;

CONSIDERANDO

I.- Evidence for better judgment (Prueba para mejor resolver). Based on Article 5 2 of the Ley de Jurisdicción Agraria, since it is deemed unnecessary for the resolution of this appeal, the evidence offered for better judgment, consisting of receiving the statement of Engineer [Nombre6] offered by the plaintiff and official communication DSFE 001.2010 offered by the defendant, must be rejected.

II.- The Court shares the facts held as proven in the challenged judgment, as they are in accordance with the evidence presented in the proceeding.- III.- The facts held as unproven are endorsed, as there is no evidence from which the contrary can be inferred.- IV- The special judicial attorney of the plaintiff, in briefs presented to the court on June 11, 2009 (folios 596), filed an appeal against the first-instance judgment (folio 577). He complains that he filed the present proceeding against the defendant by virtue of the existence of biological tests, microbiological, chemical, mineral, and physical analyses showing that the physical characteristics of the substrate that the defendant supplied were insufficient and caused them serious damages, as well as damage to the credibility of their family business. He reproaches that the defendant did not refer to the evidence provided, which, although the lower court endorsed it, it deemed insufficient to grant the lawsuit. He specifically expresses the following disagreements: 1) Regarding proven facts. It was proven: a) the plaintiff is dedicated to the production of vegetable seedlings for sale to small and medium producers. b) from 2002 to 2005, products were acquired from the defendant such as trays for developing seedlings, bags with a mixture of peat and perlite for germination, brand VJ-PMP, c) according to the judgment, between 1999 and part of 2006 there were problems in the germination phase of tomato, chili pepper, and lettuce seedlings. Incorrect dates, because the fact that one of the witnesses mentioned the year 1999 was due to an involuntary lapse; since the lawsuit makes no reference to periods prior to 2002. He argues that such an error has given an advantage to the defendant company, even though the lawsuit does not mention a commercial relationship on those dates and it did not exist, and credibility has been taken away from the abundant technical evidence. He points out it is clear that the problems with the substrate existed, since the defendant acknowledged that it sent personnel without sufficient technical knowledge to change the poor-quality substrates for others. Regarding the merits of the matter, he considers the evidentiary assessment to be contrary to law. He argues that not only was his principal affected by the VJ-PMP substrate, but also two other owners of seedling nurseries who carried out the same activity as the plaintiff at that time, which was indicated in the judgment that such experiences are not relevant for the resolution of the case, which is contrary to legal logic, because if the product affected others, it highlights the problems of waterlogging, poor drainage, and root rot. He argues, it is a real damage also caused to others who could not face the economic expense of a judicial proceeding. He considers that when the judge said that the plaintiff's lawsuit was based on conjecture, she is distancing herself from the results of analyses, expert opinions, witnesses. He complains that the damage caused was of legal relevance, deserves protection, and has not been remedied. There is a causal link not observed by the judge. He indicates that a substrate with deficient physical qualities has various effects: waterlogging due to water drainage problems and poor aeration of the substrate, which leads to poor seed germination and root rot in the seedlings. The lower court deemed it did not have sufficient evidence, which is to go against the tide and convince oneself that what is observed is not correct or true. He contests the lack of assessment and reference to the agronomic evaluation of the physical characteristics of the six lots of the VJ-PMP brand substrate, which resulted from the physical analyses of the substrates carried out by the INTA laboratory, corresponding to documentary evidence “D” attached to the lawsuit brief and was not refuted. The result is the most convincing, forceful, and irrefutable evidence, since the substrate in question was totally deficient and its physical characteristics made it unsuitable for the use for which it was sold. He claims that what needed to be proven was that the supplied substrate lacked the physical conditions to produce the desired effects for which it was acquired, and he cites the agronomic evaluation table, not the specific dates on which the problems occurred, which the lower court pointed out. He emphasizes that the lower court showed subjectivity and lack of knowledge when resolving a technical case. He appeals, the judge found the certified copy of the inspection minute book 31 of the Ministerio de Agricultura y Ganadería of interest, to try to undermine his lawsuit where she pointed out that, even after the filing of the lawsuit, deficiencies in the germination of lettuce were observed. He explains the foregoing by indicating that for a company dedicated to an activity as delicate as the production of seedlings, which must be compared to the production of baby plants, making a drastic change in the planting material causes serious inconveniences, which takes time. He adds, given the abrupt suspension of the supply of the defective product by the defendant, a substitute material was sought in which there was a period of adaptation and testing, with substrates provided by other companies that necessarily produced problems in germination. However, the problem was corrected, because the supplier company SPF Agroplásticos S.A. had a second substrate with a larger particle size (coarser particles that provided better drainage and aeration to the substrate). This point was clarified in the expert report (informe pericial) rendered by engineer Luis Fernando Avendaño. In said document, he made clear the state in which he found the germination stages of the seedlings and refers to said report and photographs numbered 1 to 15; which also reflect the storage and handling conditions of the duly certified seeds. He complains of being dissatisfied with the decision of the lower court regarding the lack of certainty, because with the expert evidence, laboratory evidence, and the same testimonial and interrogatory evidence, the reality of what happened is reached. He proceeds to make an analysis of the testimonial statement of [Nombre7] and in this regard considers that there is a statement against him when indicating, contrary to what the judgment says, that the agricultural practices and the seeds came certified from the producing company and the actions by the nursery were correct at all times. It is extracted that the recommendations made by technician [Nombre8] an employee of his company, did not solve the problem, because the real problem was in the physical characteristics of the substrate and that the same agricultural practices have been maintained, which for the defendant are incorrect, but upon changing the brand of the substrate, the germination problems complained of in the lawsuit no longer occurred. It was proven that the plaintiff company responsibly referred the matter to the competent entities in phytosanitary matters, namely the Servicio Fitosanitario del Estado. In that instance, it was demonstrated that the problem did not consist of the defendant's conjectures when alleging poor agricultural practices, quality of the seeds, or water used. The defendant company did not count on the plaintiff not conforming to its explanations and would turn to the State through the official entities in charge of the topic of plant health of crops, and that the result of said investigations, carried out by internationally recognized methods and with competent professionals, would lead them to file this lawsuit. It is appealed that the judgment does not comment on anything regarding this, and it seems to be dissatisfied with the fact of having turned to such instances to find the cause of the problem, which was undoubtedly established. He points out that the defendant mentioned that it needed to request a certificate of analysis from the substrate supplier in Canada, the result of which was never made known to them and was not provided to the record. He argues, while the plaintiff bears the burden of proof, this does not exempt the defendant from offering exculpatory evidence to refute the facts attributed to it. He argues that the defendant never provided proof of having made a claim to the supplier for the problems its supply generated, and he questions the defendant's conduct of continuing to receive this material and limiting itself to replacing it with another that also proved ineffective, without a claim being made to clear its name in commerce or to recoup its losses. The foregoing causes the appellant surprise, and this aspect is not even mentioned in the appealed judgment. He states that with this evidence it was clear that: a) until the end of 2004, the defendant, through Mr. [Nombre8], began to take notes of the numbers that identified the bales. These came by lot numbers, and for traceability purposes, work is done on the substrates with this identification, which comes printed on the packaging, and for this reason, under his judgment, he removed the ones he deemed defective and changed them for others in better condition. The foregoing caused irregularity in the greenhouses, when the seeds germinated, which manifested in the form of patches. That is, some trays good, others half good and half bad, resulting in completely gray roots damaged by the excess water accumulated due to the poor physical characteristics of the substrate. b) The invoices issued by the defendant did not state the lot number that was being acquired, which is always indicated when acquiring, for example, seeds. c) no study was carried out by the defendant that provided them with information on the substrate, which is confirmed by the testimony of [Nombre8]. It is indicated by the appellant that through the interrogatory evidence, the reasons why they continued using the product despite the problems it presented are explained. In addition to this, he notes that there was not enough option on the market to acquire a good quality product, which they found in the Klassman brand supplied by the company SPF Agroplásticos S.A., which did carry out physical analyses of the substrate and the change was made immediately, without modifying agricultural practices, and the results were optimal due to the quality product. They complain that having turned to the competent state entities provided them with the technical basis that gives the foundation for the lawsuit. Regarding the statement of Ulises Jiménez Jiménez, he points out that in his capacity as a public official, he attested to the taking of samples in accordance with Ley 7664 and its regulations, which could not be refuted by the defendant. He highlights that the tests were carried out in accordance with legality and that it was not a matter of pests or diseases, poor practices, or other conjectures outlined by the defendant that caused the poor seed germination, post-germination root death, lack of uniformity, and loss of vigor. He indicates that the INTA results demonstrate the poor physical quality of the substrate and that the agricultural practices were adequate. Regarding the seeds, he mentions that regarding their use and handling, they adhere to the procedure governed by the Oficina Nacional de Semillas and they are duly registered, and engineer Luis Fernando Avendaño himself pointed out regarding them that a detailed log is kept where their trace is observed, with proper identification, to whom they were delivered, and it was ruled out that the seeds used presented problems. In this regard, none of the foregoing was sufficient for the lower court, without her indicating the reason for the rejection. Regarding the statement of [Nombre9]. It is appealed that with his decision, it is demonstrated that the problem was in the substrate sold and not in another cause, since he was aware of the tests that Mr. [Nombre8] carried out to determine the origin of the problem.

The witness explained the modus operandi of the nursery without any aspect being able to be objected to, and was emphatic that the substrate presents a lot of humidity due to its fineness and the existence of an irregular mixture of the product, and questions how a renowned Canadian company was going to supply a product of such poor technical quality: He attributes that the defendant did not act in defense of the customers in the country upon the supply of a product of that nature, which demonstrates a poor quality control system before its packaging, and by not taking any measure against its supplier, makes it responsible for the damages caused. He indicates that the lower court (a quo) downplayed this statement. Regarding the statement of [Nombre8]. He argues that he is impressed by the importance given in the judgment to the single witness offered by the defendant, as opposed to a group of professionals in phytosanitary matters, nursery owners, and technical test results, and even expert reports (peritajes) that should have been accepted for meeting the requirements. Regarding this testimony he points out: the defendant was aware of the problem, since that witness was the person that the company sent when problems occurred. Said witness clarified having experience in interpreting physical evaluations of substrates, for which he resorts to laboratories such as Agrotec and Cafesa. He considers it transcendental that no document was provided by the witness or the defendant showing that Mr. [Nombre8], faced with the plaintiff's problem, submitted the physical problem of the substrate in question to the laboratories he mentioned. The foregoing was impossible, because such laboratories are specialized in soils and lack methodologies for physical analyses of substrate. The defendant did not provide any evidence contradicting the results of the state entities through their laboratories. He is aggrieved that his testimony could not disprove that the problems originated in the physical qualities of the substrate that produce a deficient and unmarketable plant, and not in pathogenic elements or the State's poor agricultural practices. Regarding his testimony, the appellant argues that it tried to point towards said cited incorrect practices; however, the testimony of [Nombre9] demonstrates the contrary and could not be disproven. He points out that the witness [Nombre8] indicated that they informed the manufacturer of the problem, and the product was discarded without knowing who the manufacturer is, under what conditions it is produced, where the product was packaged, as well as its responses; which should have been disclosed to its distributor, the defendant company, within a logical commercial relationship. Said witness accepted that the product came with low perlite content, which was what originated the claim; such physical quality translates into low quality, which was proven with the analyses from INTA. The foregoing, he points out, was never understood by the first-instance judge. He indicates that the testimony under analysis demonstrates the bad commercial practice of his employer and the deficiency in the physical quality of the substrate and questions the reason for the judge's conclusion of not having sufficiently accredited that deficient quality. The testimony of [Nombre10]. That witness was affected by the product sold by the defendant, as it led her company Almácigos y Semillas S.A. to bankruptcy, and it became impossible for her to face a judicial process. The witness argued that she had to compensate each client she had for the poor germination of their plants and she maintained good agricultural practices because she was supervised by the State Phytosanitary Service (Servicio Fitosanitario del Estado) and she pointed out that twelve days before the major problem caused, she proposed her company as a model for the use of said substrate and it was done so with the accompaniment of Mr. [Nombre8]. Her testimony disproves the defendant's defense when it indicates that the cause would be poor practices, since the damage suffered in her nursery were the same as those of the appellant. She indicated that this situation was accepted even in front of the defendant's partners and she undertook the task of trying to locate the supplying house, from which she obtained no information. Regarding the testimony of [Nombre11], who was another user, he presented identical problems to the previous witness and the plaintiff and could not, like the rest, initially know the origin of the problem and who likewise suffered serious economic losses. He points out the importance that the geographic location of his nursery was very distant from that of the appellant. The same occurs in the sense that the defendant company and Mr. [Nombre8] could not provide an answer to his problem, which was solved when he started using a different substrate. He attributes that the lower court (a quo) evaluated the evidence indicating it did so based on the rules of sound criticism (sana crítica), but against what was yielded by the technical and scientific evidence. The witness [Nombre12], who is a doctor in phytopathology and his advisor, demonstrated that there was permanent surveillance over the crops regarding diseases and that there was a problem of water saturation that affected them. His presence proves that the company was advised on phytosanitary diseases. Said witness was clear that the origin of the damage was due to abiotic causes, that is, lack of oxygenation due to water saturation and not due to pathogenic agents (microorganisms). He clarifies that this witness had a lapse when he indicated without malice that he had seen the use of the substrate since the year 1999, which is not correct, since the company did not have a commercial relationship with the defendant at those dates, which does not affect the merits of the matter. They reject that this technical and scientific evidence had been disqualified, as considering that science and research lack reason to exist. He considers that the judgment is devoid of technical basis. The witness [Nombre13], who works as a state phytosanitary engineer, is a technical witness who, during the period in which the analyses were carried out, was the person in charge of the greenhouses where such tests were developed, to observe if there were pests or diseases. That person explained the planting procedure in the greenhouses with the exclusion of third parties, as well as that the results thereof were sent to the heads and the existence of the administrative file (expediente). The result yielded is that no pests or diseases were observed, but rather mechanical damage or necrosis in the plant root networks (retículas) and a physical and microbiological analysis was recommended to determine the origin of the damage, since initially the reason was unknown. His testimony could not be disproven by the defendant, who tried to make him fall into contradiction by showing him photographs of unknown origin and to which the mentioned deponent responded that the greenhouses did not have those conditions at the time of conducting the tests. The planting test was carried out objectively only by them and on two occasions, and the official one corresponded to the second. This evidence also did not deserve credence from the judge. Regarding the expert report (informe pericial). The appellant argues that said evidence was requested by the defendant and was objective and conclusive and carried out by an expert who knows substrates, seeds, seedlings (almácigos). Said report is prepared after the filing of the lawsuit and made it clear that there were no germination problems, which the judge used to benefit the defendant's position. He argues that the objective of the report was to determine if the substrate or the plaintiff's poor practices caused the damages and that was determined, and the defendant could not disprove the facts alleged in the lawsuit and having determined the deficiencies noted. He attributes that the lower court (a quo) only took parts of his statements, and they do not know how the judge wished to have the damages accredited, and proceeds to disregard the most important and conclusive evidence. Regarding the damages (daños y perjuicios). They argue, how would they go about proving these aspects, with the stance of the instance judge who did not even consider the technical deficiencies of the substrate proven. Upon rejecting the lawsuit, these claims were denied, and they request that such items be declared in the abstract (en abstracto), and be executed in the enforcement phase (vía de ejecución). [Nombre5]. He reproaches the condemnation of such extremes and the damages, when they have acted with absolute good faith. The damages have only been suffered by the plaintiff, and the defendant has not been harmed in any way. He finishes indicating that the nature of this matter is more technical than legal. As evidence for better provision (prueba para mejor resolver), he requests that the engineer [Nombre6] be called, who was in charge of the technical interpretation of the physical analyses carried out on the VJ-PMP substrates by the INTA laboratory, which is fundamental evidence in this proceeding. The defendant, without having filed an appeal, offers as evidence for better provision official communication DSFE 001.2010 of January 4, 2010, visible from folio 653 to 668, and as an argument for its admission proceeds to attack said evidence, as it mentions that such reports rendered by the State Phytosanitary Service (Servicio Fitosanitario del Estado) were not made for the purpose of serving as evidence in a judicial process, and in their preparation they had no knowledge, barring the possibility of intervening in the evidence, and accepting that means of evidence violates its right of defense and is illegal evidence because it comes from the State, among other aspects. It also proceeds to offer certifications from a certified public accountant detailing the purchases of the substrate made by the witnesses that were provided to the instance judge and that were rejected by the lower court (a quo) on that occasion.

**V.**- In the first place, this Tribunal observes that in the judgment the solution of the specific case was developed considering it was a claim for damages (daños) for subjective liability regulated in Article 1045 of the Code. In such hypothesis, it is the injured party who had to prove the causal link (nexo causal) between the damage and the losses (perjuicios) suffered. The foregoing is deduced from what is stated in the final paragraph of the seventh consideration (considerando) of the judgment, when it literally states: "*With the review of the evidence produced, the undersigned considers it is not pertinent to impute the germination problems in the plaintiff's nursery to the defendant. In accordance with Article 317 of the Code of Civil Procedure, the company Agroverde Dos mil S.A. bears the burden of proof (carga de la prueba) in demonstrating the damage (daño), the causal relationship (relación de causalidad), and the authorship of the defendant. In this case, it was not proven clearly and conclusively that the substrate sold by VJ-Centroamérica S.A. was the exclusive factor causing the damages and losses claimed. Consequently, it is not pertinent to impose the duty to compensate them on the defendant.*" (bold is not from the original). This instance does not agree with what was indicated by the first-instance judge in her judgment, since from the review of the lawsuit and the specific case, it is determined that this is an action whose claim originates in a consumer relationship and from which payments of damages (daños y perjuicios) are claimed under objective liability. In general terms in such a scenario, the mere existence of the damage presumes the responsibility of the harmful agent for having caused said damage, and from there arises the obligation to compensate for the damages (daños y perjuicios) caused. The burden of proof that such damage was not caused by virtue of the good or service acquired by the consumer and to disprove the causal relationship imputed by the plaintiff, falls on the defendant. As set forth in proven facts 1 through 5, the plaintiff is a company dedicated to the production of vegetable seedlings (almácigos de hortalizas) and between January 2002 and March 2006, it purchased from [Nombre4] Centroamérica S.A. trays for seedling development and sacks containing mixtures of peat and perlite for germination of the VJ brand. During the commercial relationship, the plaintiff purchased 4513 sacks of the peat and perlite mixture for germination called V-J Plug Mix Perlite. The plaintiff attributes problems in the germination of the chile, tomato, and lettuce seedlings. Those it identifies with the presence of radicle rot and excess water in the growing medium. It alleges in the lawsuit that such problems arose due to deficiencies in the physical qualities of the substrate acquired for seedling production, and therefore the defendant be ordered to pay the damages (daños y perjuicios) caused to its company. As observed from the lawsuit, the payment of damages caused by the product sold by the defendant to the plaintiff, to be used in the seedling production process, is reproached. For its part, the defendant responds (folio 174) accepting that the company Agroverde Dos mil S.A. was its client for some years and acquired, among other products, the VJ-PMP substrate, which is a germination medium sold to a large number of companies. The same consists of a mixture of sphagnum peat with perlite and other ingredients specifically designed for seed germination. As observed, there is a relationship between the contending parties, in which the plaintiff company holds the nature of a consumer. Regarding objective liability, the Court has resolved: "*... only must prove that the damage (daño) exists and that it was produced as a direct and immediate consequence of the activity deployed ... No demonstration of fault or willful misconduct is required, since the attribution criterion is objective. It is for the judge to examine in each case whether or not there exists direct and adequate causality between the damage claimed (and demonstrated) by the petitioner and the activity (active or omissive) deployed...*" (Ruling no. 662-F-S1-2010, of 14 hours 20 minutes of May 26, 2010) and regarding objective liability in favor of the consumer and its extension, the First Court (Sala Primera) has resolved: "*V.- Objective liability for risk in consumer matters. Regarding liability, two main branches can be identified, one subjective, in which the concurrence, and consequent demonstration, of fault or willful misconduct on the part of the author of the harmful act is required (e.g., Article 1045 of the Civil Code), and another objective, which is characterized, essentially, by dispensing with said elements, the imputation of the damage being the central axis upon which the duty to repair is built. As an example of the above, there is number 35 of the Effective Consumer Defense Law (Ley de Defensa Efectiva del Consumidor), in which the merchant, producer, or supplier, shall be liable for those damages derived from the traded goods and the services provided, even when negligence, imprudence, inexperience, or willful misconduct is not detected in their actions. Likewise, it is important to consider, due to its influence on the evidentiary matter, that the determining elements for the emergence of civil liability, be it subjective or objective, are: a harmful conduct (which can be active or passive, legitimate or illegitimate), the existence of a damage (that is, an injury to a protected legal right), a causal link (nexo de causalidad) linking the two previous ones, and in most cases the verification of an attribution criterion, which will depend on the specific legal regime. Regarding causality, it is necessary to indicate that it is a case-by-case assessment carried out by the judge in which, based on the facts, he determines the existence of a relationship between the damage claimed and the conduct deployed by the economic agent. Although various theories exist on the matter, the one considered most in accordance with the Costa Rican regime is that of adequate causality, according to which there exists a link between damage and conduct when the former originates, if not necessarily, at least with a high probability according to the specific circumstances affecting the matter, from the latter (in this regard, see, among others, resolutions 467-F-2008 of 14 hours 25 minutes of July 4, 2008, or 1008-F-2006 of 9 hours 30 minutes of December 21, 2006). At this point, it is important to clarify that the verification of exempting causes (fault of the victim, an act of a third party, or force majeure), acts upon the causal link, ruling out that the conduct attributed to the defendant was the producer of the injury suffered. Regarding the different attribution criteria, for the purposes of this case, the theory of created risk is of interest, which was included, expressly, in the Consumer Defense Law (Ley de Defensa del Consumidor). The objective scheme that the law opts for, as well as the application of the cited attribution criterion, are inferred from the simple reading of the norm in question, which stipulates: 'the producer, the supplier, and the merchant must respond, concurrently, and independently of the existence of fault, if the consumer is harmed by reason of the good or service, by inadequate or insufficient information about them or by their use and risks. / Only the one who demonstrates that he has been unrelated to the damage is released. / The legal representatives of commercial establishments or, as applicable, the persons in charge of the business are responsible for their own acts or deeds or for those of their dependents or assistants. The technicians, those in charge of preparation and control respond jointly and severally, when appropriate, for violations of this Law to the detriment of the consumer.' (the bold is supplied). Carrying out a detailed analysis of the norm just transcribed, a series of conditioning elements for its application emerge. In the first place, and from the plane of the subjects, that is, who causes the damage and who suffers it, the application of this liability regime is subject to certain qualifications concurring in them. Thus, regarding the first, it is required that they be a producer, supplier, or merchant, be they natural or legal persons. For its part, regarding the second, the injury must be inflicted on one who participates in a legal relationship where they are positioned as a consumer, in the terms defined in the reference legal body and developed by this Court. It is required, then, that both parties form part of a consumer relationship, the object of which is the potential acquisition, enjoyment, or utilization of a good or service by the consumer. ....., as there exists a consumer relationship, the specific case must be analyzed under the scope of coverage of number 35 under discussion. Likewise, from the precept under study it is inferred, in the second place, that the legislator set a series of attribution criteria based on which the objective liability that this article regulates can be imputed, within which is found the aforementioned theory of risk. Thus, this serves as a factor to ascribe responsibility to the subjects referred to. In essence, said theory postulates that whoever creates, exercises, or benefits from a lawful lucrative activity that presents potentially dangerous elements for others, must also bear its drawbacks (ubi emolumentum, ubi onus, which can be translated as where the emolument is, there is the burden). From the previous statement, two characteristics can be gathered: on one hand, that the risk comes from an exploitation activity; and on the other, by being performed by the human being, so-called acts of nature are excluded. Concomitantly, it is important to make some clarifications regarding the risks apt for the generation of liability, since not all risk implies the automatic emergence of it. Currently, life in society offers countless risks, of different degrees and scopes, to the point that it can be affirmed that it is impossible to find a daily activity that is exempt from them. In this line, the interpretation of norms cannot start from an absolute and total aversion to risk, which, as indicated, forms an integral part of societal coexistence and of the technological advances that integrate into it.*" The foregoing leads to the affirmation that, for the duty to repair to arise, the risk associated with the activity must present a degree of abnormality, that is, it must exceed the margin of tolerance that is admissible according to the rules of experience, which must be analyzed on a case-by-case basis by the judge. The second point that requires some commentary concerns the subject who becomes obligated by virtue of an activity considered dangerous. As already indicated, the criterion for imputation is, precisely, the risk created, which suggests that the person to whom the damage is imputed must be in a position of control over it, that is, they must be the one who carries out the activity or assumes the possible associated negative consequences, receiving a benefit from it. This benefit can be direct, identifiable, among others, with the income or emoluments obtained as consideration, or indirect, when the advantageous situation arises reflexively, as occurs with alternative mechanisms intended to attract consumers and, consequently, result in economic profit for the offeror. It is important to mention that in an activity it is possible to find different degrees of risk, which must be managed by the subject who benefits from it, a circumstance that exerts a direct influence on the evidentiary duty incumbent upon them, as it is relevant for determining imputation in the sub judice. The foregoing, coupled with the existence of exonerating causes, demonstrates that the legislation under comment does not constitute an automatic transfer of assets.

**VI.-** In the present case, the plaintiff's claims were upheld by a majority by the Tribunal, which considered that the operation of the electronic banking system presents such dangerousness that it allows the damages inflicted to be imputed to the Bank. ......... . Just as mandated by numeral 35 of the Consumer Protection Law, there has been a party harmed by reason of the service, which upon being used (and in view of its risky nature) produced a significant injury to the party appearing in the process as plaintiff. Consequently, instead of an improper interpretation of the rule, the article has been given its correct and proper meaning..... In addition to the foregoing, it cannot be overlooked that the emergence of liability depends on the existence of unlawfulness (antijuridicidad), without objective liability being the exception, it being necessary to determine, in this case, if the affected party was under a legal obligation to bear the damage, as is derived from the principle of patrimonial indemnity. This baseline unlawfulness is identified, in the present case, with the existing risk in the operation of the service, as is evident from the evidentiary record itself, whose improper valuation is being claimed. It is for what has been indicated up to this point that the arguments put forth by the appellant, to the effect that the duty of safety is commercial and not legal in nature, are not acceptable. As already advanced, the development of actions undertaken by a legal subject, which foreseeably have the potential to cause damages, implicitly carries the duty to guarantee their safety. In this line of reasoning, it is not a matter of the defendant demonstrating the diligence they have assumed, as this is an aspect inherent to a subjective system of liability.......

**VII.-** In summary of what has been stated, in the specific case, the concurrence of a liability exemption was not demonstrated, such as the fault of the victim, the act of a third party, or force majeure. While the first is alluded to, there are not, within the evidentiary record, sufficient elements to affirm that the victim had participation in the production of the damage. Had any of these circumstances been proven, it would be impossible to establish a causal link between the Bank's conduct and the injury, and therefore, a duty to repair could not arise on the part of the entity. As already stated, the existence of an exemption implies that the cause of the detriment can be linked to another subject, or what amounts to the same, that the defendant is extraneous to the damage inflicted. In any case, in the present matter, the concurrence of an exonerating cause was not successfully demonstrated, nor that the Consumer Protection Law is not applicable, and therefore, since there exists damage as a consequence of a risky service, in the terms of numeral 35 of the cited regulatory body, an improper application of the legal regime by the trial judges is not observed." (Sala Primera de Casación, No. 1098-09, at 14:45 on October 22, 2009). The decision of that high Tribunal, which is shared by this Court and finds its legal basis in Article 41 of the Political Constitution and Article 35 of the Effective Consumer Law, in addition to what is specifically mandated for the activity carried out by the defendant company in the Ley de Protección Fitosanitaria, which states: "*Article 32. 'Those who import, manufacture, formulate, repack, distribute, store, transport, sell, and apply chemical, biological, or related substances for agricultural use, shall be obligated to compensate for the damages and losses that, by their actions or omissions, they cause to agriculture, livestock, human health, and the environment*'." For its part, on the topic of damage and risk, this Tribunal has reviewed some relevant doctrinal criteria: "*V. Modern doctrine, for its part, has supported the objectivization of liability, by including within the factors of imputability and legal attribution of damage, apart from fault and intent, risk. It has even been proposed to include other objective factors: guarantee, equity, abuse of right, and excess of normal tolerance among neighbors. Damage is therefore seen not from the perspective of the perpetrator's act but from the position of the injured party, to ensure that every unjustly caused damage is repaired. From another point of view, fault has been separated from the unlawfulness of the act, giving a more important role to the latter. 'Once the equivalence between the unlawfulness of the act and fault was broken, conduct acquired an autonomous physiognomy detached from the subjective profile of the agent's will, to become a simple means, cause, or criterion of connection between a subject held responsible and a certain harmful event to be compensated.' (Franzoni (Massimo), La Actividad peligrosa, in* Responsabilidad por daños en el tercer milenio, *Abeledo Perrot, Buenos Aires, 1997, p.120). Thus, the Theory of Risk is discussed, which does not displace fault but complements it, and is summarized as the duty of one who creates a risk to indemnify the damage they cause to a third party. 'Risk is a cause of imputability when, due to the performance of certain causes and specific activities, qualified as dangerous, damage is produced. The damage under these circumstances must be compensated, not because the agent incurred in intent or fault, but because the legal system must protect the community from the development of dangerous activities, so that whoever performs them incurs liability if damage is caused by virtue of such performance... Liability derived from risk does not depend on the intent or fault of the agent but originates in the mere occurrence of the damage resulting from the dangerous activity. This consideration brings with it a special evidentiary regime, according to which, by the mere exercise of the unsafe activity, the agent's fault is presumed, exonerating the victim from the task of demonstrating improper conduct. The agent bears the burden of rebutting the presumption...' ([Nombre14] , Hecho imputable dañoso in* Del daño, *Editora Jurídica, 1st Ed., Colombia, 2001, p.260). For other authors, 'the causal relationship is an element of the illicit act and of contractual breach that links the damage directly with the unlawful act, and indirectly with the element of subjective imputation or objective attribution. It is the binding factor that causes the damage and the fault, or in its case* the risk, *to be integrated into the unity of the act that is the source of the obligation to indemnify' (see [Nombre15] (), El perfil de la responsabilidad civil al finalizar el siglo XX in* Responsabilidad por daños en el tercer milenio, *Abeledo Perrot, Buenos Aires, 1997, p.24 to 26)." ( Voto 541-F-11 Tribunal Agrario).

**VI-** This Court considers that both the plaintiff company and the defendant contribute to the development of a strategic and fundamental activity for the Costa Rican state, as they ensure the nation's food security and have under their responsibility the duty to promote the development of agricultural activity in such a way that the phytosanitary condition of plants is protected. For this purpose, nurseries, seed banks, seedbeds, and companies of this nature are regulated and protected by the State by providing a specialized technical state structure to assist and control their activities and prevent serious problems such as the propagation of pests, protecting human health and the environment. To this end, a series of laws and regulations have been established aimed at setting the technical and legal provisions of mandatory observance for producers. Within that normative framework, we find the Ley de Protección Fitosanitaria number 7664 and the repealed Reglamento de Viveros and the current decree number 33927-MAG Reglamento de Viveros, Almácigos, Semilleros y Bancos de Yemas published in La Gaceta on October 30, 2007. Said regulation, in its Article 4, establishes the obligation for these establishments dedicated to the activities they regulate to be duly registered before the Programa de Viveros and to comply with the specific phytosanitary measures for each activity. Article 14 of this regulation establishes the power of the Servicio Fitosanitario del Estado to take samples that will be taken to the Official Laboratories for the diagnosis of the presence of pests or diseases, and for this purpose, phytosanitary inspectors are authorized. This Court observes that the various grievances are related to the value given to the evidentiary elements by the trial judge, who did not consider it proven that the alleged damage from the germination problems in the seedbeds was exclusively caused by the use of the substrate sold by the company [Nombre4] Centroamericana S.A. The appellant's disagreement lies in the fact that the trial judge did not consider the scientific, technical, and expert evidence to deem it proven that the substrate caused the damages to the plants of the plaintiff's nursery during the period from January 2002 to 2006, as well as the value given to the testimonies and documentary evidence. As explained in the preceding considering clause, the defendant company's exemptions from liability would be force majeure, fault of the victim, or the act of a third party, which must be studied to determine if they are present and manage to break the causal link between the conduct and the damage claimed by the plaintiff. The defendant party has alleged in its favor fault of the victim and the act of a third party, because despite having accepted that the substrate sold had problems in its physical composition, it argues that the germination problems cannot be attributed solely to the substrate. They bring up that the plaintiff, in its production process, received seeds from its various clients, had irrigation problems, and did not follow their technical provisions for the product's use and developed poor agricultural practices in its nurseries.

Grievances. Regarding the lack of valuation of the scientific and technical evidence and with it, having the causal link accredited. The party grieves that the trial judge indicated lacking sufficient evidence to deem the facts proven. In the sixth considering clause of the judgment, it was reasoned that by virtue of the confessional evidence, it was proven that the plaintiff company was supplied seeds by its clients. It also deemed proven the commercial relationship between the parties from January 2002 to March 2006, during which the sale occurred, among other products, of the substrate used in the plaintiff's production process. In the ruling, these conclusions are drawn from the documentary evidence of invoices and confessional evidence. It was admitted by the defendant that 4513 bags of said product were purchased. It is described that problems occurred with the substrate that affected germination. In this aspect, it is indicated in the judgment that the specific dates on which such issues occurred were not demonstrated, nor the quantity of seeds and seedlings that suffered these circumstances. The lack of clarity regarding the specific date on which this problem began in the seedbeds of Agroverde Dos Mil S.A. is recorded. The trial judge bases this conclusion on the testimony of [Nombre12], who indicated that such moisture saturation problems in the roots had been occurring since 1999. The trial judge also points out that in 1999, the defendant was not selling the substrate to the plaintiff. She also relies on the testimony of [Nombre9], who testified that the major problem arose from late 2004 to early 2005, which is when the problem occurred. The appellant grieves that the date indicated by the witness [Nombre16] was due to a lapse, since in 1999 there was still no commercial relationship with the seller of the substrate and the defendant itself indicates the dates on which the sales occurred. This Court considers that such a grievance cannot be accepted, as it was so recorded in the corresponding minutes and cannot be varied, since all parties to the process were aware of these statements and it was never objected to or requested that the date mentioned by said witness be corrected. What has been recorded is the existence of the commercial relationship between the contending parties and that upon ending the commercial relationship, the defendant company sold the plaintiff the substrate blamed for the germination problems, as recorded in the appealed ruling. The judgment indicates that it was also not proven that the alleged damages in the plants were exclusively due to the substrate. Furthermore, it was noted that it was accepted that the technical recommendations given for the use of the substrate by the regent of the selling company were not followed. The appellant grieved in this regard that in the judgment, importance was given to the lack of demonstration of the dates of the damages, when what was important was to determine that the deficiencies in the physical characteristics of the substrate caused the moisture retention problems, and that inadequate drainage and aeration caused damages to the seedlings. They pointed out the non-valuation of evidence "D" Physical Analysis of the substrate, the expert evidence, and confessional evidence. In this aspect, the appellant is not correct. To grant this claim, the causal link between the conduct and the damage inflicted must be clear. From the valuation of the evidence of the physical analysis of the substrate and the expert evidence given in this matter, it has been demonstrated that the analyzed substrate had deficient physical qualities and that these could cause damages in the germination of the plants. The trial judge is correct in reasoning in the judgment that the evidence was not sufficient for her to accredit that the damage was caused solely by said substrate and that it is not clear that the procedure applied by the plaintiff to the substrate at its facilities was consistent with that developed by the State in its study. The foregoing, as it was accepted by the plaintiff party in its complaint, that the seeds used were provided by various clients and that the recommendations in the process of modifying agricultural practices by the regent were not accepted, as they did not agree with them. On the other hand, as indicated in the judgment, the analyzed samples were taken after the period claimed by the plaintiff, since the problems began in 2002, and the physical analysis evidence identified as D is from 2006. Added to this, the expert evidence is from March 2009. Although it can be determined that the product sampled by the State was deficient, it is not possible to deduce, for the reasons indicated, that the damages to the plants were due solely to the substrate or that situations extraneous to the product did not intervene that interfered with the germinated plant.

Regarding the evidence to which value was not granted that they had, the following are mentioned in the appeal: evidence A- Biological test carried out at the Ministerio de Agricultura y Ganadería, Servicio Fitosanitario del Estado, Diagnóstico Fitosanitario, Greenhouses dated June 5, 2006 (folio 4) which reports on the result of planting Lettuce Lactuca Sativa variety Gulf Stream in substrates supplied by the company Agroverde Dos Mil S.A. in five lots identified with numbers 1975 to 1980. Said report concludes that the root damage present in the non-germinated plants "may be" as a consequence of the physical or chemical characteristics of the substrate, since no damage caused by pathogens was observed in the foliar part and recommends a physical, chemical, and microbiological analysis of the substrates. In the Microbiological Analysis, Evidence B (folio 5), it was concluded that no pathogenic fungi or bacteria (causing pests and diseases in plants) were found. The Mineral Chemical Analysis of the organic substrates identifying the same described lots, Evidence C, was provided (folio 6). In what is pertinent, the Physical Analysis, Evidence D (folio 7), determined moisture retention. At folio 234, record number 21 of April 28, 2006, from the Servicio Fitosanitario del Estado appears. It records that the official of that agency, Engineer Ulises Jiménez Jiménez, appeared at Agroverde Dos mil S.A. for the taking of laboratory analysis samples from the INTA, already mentioned, for the determination of the physical, chemical, and microbiological characteristics of the sampled lot. Indicating that the sampled lots are: 1212505, 1312505, 0912505, 1001505, 11011505, 1201505, and said samples are given the seals from 1975 to 1980, describing which corresponds to each lot, and mentioning that they remain under the custody of the MAG and that the sampled material corresponds to the substrate produced in Canada and sold by VJ- Centroamericana S.A.

The defendant party provided, with the response to the complaint, two trials that were conducted in 2002 by virtue of the problems that were occurring with the germination of the plants. Namely, Trial 002-02: Sweet Pepper of November 1, 2002, is recorded (folio 135). Said trial report is issued by the defendant company through the regent, Agricultural Engineer [Nombre8]. It describes a cultivation trial of sweet pepper seeds, which are duly certified, and in it, the cultivation of the seeds was carried out using the usual procedure of the defendant company. As observations and recommendations, some practices that should be avoided were described and no problem was found with the medium affecting the roots. Likewise, it was indicated that compaction with a roller negatively affects plants in their germination and points out the need to pre-moisten the substrate so that it has uniform moisture before filling the trays, detailing the method to follow, it was made known to them that stacking trays affects them in terms of compaction, and that a germination rate of 91% in good conditions was obtained. The observation was made that the producer uses growing media from various manufacturers. The recommendations lean towards indicating that cultivation should not be compacted with a roller and that they should moisten the substrate prior to filling the trays in the manner explained there, and not apply irrigation afterward, as the producer has been doing. A Lettuce seed trial called 001:02 of November 1, 2002, was also provided (folio 146). In it, a good germination result was obtained and the same recommendations were noted regarding the producer's agricultural practices. The defendant requested an expert opinion, which appears from folio 323 to 331, for which a hearing was given, without it being objected to by any of the parties. From the reading of said expert evidence, it is denoted that its objective is: to determine if the problems reported by Agroverde 2000 S.A. were caused by the characteristics of the substrate imported and sold by [Nombre4] Centroamericana S.A., or by poor handling thereof or another cause. The expert specifies that the field work was carried out between January 10, 2009, and February 13 of the same year, at the plaintiff's facilities. The expert explains that they proceeded to visit other nurseries that develop the same production process, interviewed representatives of the Servicio Fitosanitario del Estado, and made other inquiries. They begin by indicating that the use of substrates for the production of vegetable seedlings is recent in the country, but that it is currently a generalized practice. They cite the importance of good quality of seedbeds for any agricultural project, since the success or failure of said project depends on it, and therefore, knowledge of the chemical, physical, and microbiological characteristics of that substrate is relevant, since the plants' development plan in the greenhouses is programmed according to it. In the specific case, the physical characteristics of the peat (substrate) provided by the defendant are questioned. They mention that their claim is limited to studying the physical qualities of the substrate, because from the very results contributed by the plaintiff, it is deduced that there are no problems with the chemical and microbiological qualities. The expert opinion indicates that granulometry and the type of material determine the physical characteristics of a substrate, and among those mentioned are: thickness index, apparent density, real density, and moisture retention at different suction pressures, which are factors that allow the calculation of porosity and the air-to-water ratio of the substrate.

The opinion provides technical explanations of concepts regarding the composition of substrates (sustratos) and the beneficial or negative effects they produce on crops, and at this point concludes that in order to have a substrate with good physical characteristics, it must meet appropriate and balanced conditions that allow for the proper development of plants. The report describes that it was verified within the plaintiff's production process that the place where the seeds are stored meets the requirements. The expert describes the production process found in the defendant's nursery and noted that he observed the majority of the bales that supposedly caused the damage to the plants. He indicated having observed 19 sacks out of the 34 indicated in the complaint that the plaintiff kept in its possession. He cites 7 are from lot V-J 1001505, 8 from lot V-J 10101505, two from lot V-J 1212505, and two from lot V-J 1201505. It is important to mention that said expert reported that he visited the facilities of the Ministerio de Agricultura y Ganadería and spoke with engineer Ulises Jiménez Vega, who was the person in charge of taking the samples at Agroverde 2000 S.A., and he was able to observe the samples in custody; subsequently, he appeared at the laboratory where the tests were performed and found them in optimal conditions, and he was provided, by Engineer Edgar Vega Zúñiga, who was in charge of evaluating the seedling development process, with a copy of the report he prepared for that purpose. Subsequently, he proceeded to visit the greenhouses of the Servicio Fitosanitario del Estado and left a record that the management conditions are acceptable. The expert proceeds to answer each of the questions that the defendant company requested be addressed, and from them, aspects of fundamental consideration for the resolution of this dispute are deduced. To the first question, he answered that it could have been possible that the cause of the plaintiff's problems was the supplied substrate. He explains that the foregoing is deduced from the result of the physical analysis of the samples carried out by the MAG, which showed that in more than 80% there were particles smaller than 1mm and excessive moisture retention at three different suction pressures. He notes that the foregoing is serious, as it causes poor aeration of the plant, and consequently, poor root development. In the second question, he assures that a germination problem can occur in the same tray irregularly, in patches, or throughout the entire tray, because according to the results of the MAG analysis, the samples presented between 80% to 82% of very fine material and between 18% and 20% of particles larger than 1 mm, and if it is poorly distributed within the bale, the indicated germination situations can occur. The third question makes it clear that the damage occurring in the germination trays where development was non-uniform and patchy was not due to contamination, as the laboratory results did not show the presence of pathogens. He also noted that the management of fertilizers, agrochemicals, substrate preparation, and irrigation systems is done safely and in adherence to technical guidelines, and detailed controls and logs are kept for the seeds, tracing them by number, entry dates, packaging, and their destination. The fourth question is directed at contesting the reliability of the investigations conducted in the laboratories of the Servicio Fitosanitario del Estado, which used a 98-cavity tray in its studies, and whether that was adding a new variable. The expert answers in this regard that the number of holes contained in a tray is not determining for obtaining the desired results in the test, since the important thing is to know if the problem presented in the different sampled lots due to the supposed physical problems is repeated or not. Regarding seed quality, it is asked if seed certification and quality testing was necessary before the tests. The expert indicates that a seed quality analysis could have been good to give greater scientific formality to the evaluation, but that in this case it was not determining, because according to inquiries, the seed during that period did not report problems of vigor or germination. And he adds that when a substrate has physical problems, it is not important if lettuce, tomato, or pepper seeds are used, because the same symptoms can appear using other seeds. The expert answers the question of whether it was necessary to describe the laboratory procedure in the investigation, affirming that it was not, because the professionals are the ones who prepare the growing medium (medio) and assume the results obtained. He adds that engineer Edgar Vega told him that the rigorous procedure for preparing the medium was used for each of the six samples and their repetitions. The expert, in the question identified as 4-4, indicates that the irrigation system used in the analysis of the Servicio Fitosanitario del Estado did not influence the germination percentage result, because it ensures the proper moistening of the plants in the trays. The expert answers the next question, which refers to the moment in the germination process when the root damage was evaluated in the lettuce plants, stating that such evaluations can be done on the third or fourth day, and having done it 6 days later, as happened, was a sufficient and adequate time to carry out such an evaluation. In the last question, the expert is asked if a procedure with a scientific method should have been carried out in the investigation of the Servicio Fitosanitario del Estado with certain aspects, such as the presence of a representative from the commercial sector. He answers that every investigation requires a scientific method, but an experimental design and statistical analysis are not an indispensable requirement in every case. He added, this is one of those cases where it is not necessary, since two repetitions are enough, as seems to have been done, to have the necessary technical certainty and analyze the results. It is mentioned that introducing another substrate would have been interesting, but in the specific case, the analyses performed are irrefutable proof that the problem originated in the physical characteristics of the various lots of the questioned substrate, and regarding the quality of the seeds, he believes it has no influence, since the germinations were good, and the aspects of irrigation, fertilization, and light do not invalidate that the analyses were adequate. This court considers, with respect to the expert opinion, the same as what is indicated in the judgment regarding the lack of proof in the case file of the causal link (nexo causal), which would require having the certainty that the problems generated in the plaintiff company's plants during the alleged period were exclusively a consequence of the sold substrate. This is because the problems indicated began in 2002, and the expert issues a criterion based on what he observed in the plaintiff's production process in 2009, and the agricultural practices from 2002 to 2006 could not be evaluated to determine the causal link solely with respect to the substrate in question. Likewise, it is also not possible to know the certification of all the seeds involved in the damaged plants, because in the confession of Mr. Soto Bravo, it was accepted that the seeds came from various clients and "some" came certified (question 3 and 4, folio 384), and that the agricultural practices recommended by the defendant's agronomist (regente) were not always followed, because they had a different technical criterion. (question six and five, folio 389). Regarding the practices recommended in the cultivation process, the case file contains documentary evidence from folios 135 to 139, trials developed by the defendant company where the plaintiff was recommended to make a change in some aspects, such as no compaction with a roller and pre-wetting the substrate, which were not permanently adopted by the plaintiff. There is no clarity with the evidence in the case file that said practices were followed, and that the causal link of damage to the plants is attributable solely to the substrate in question. The appellant argues that its claim is demonstrated with the technical evidence; however, this court considers that, although it can be deduced from it that the substrate samples show a deficiency in their physical qualities that produce problems in plants, the lack of knowledge of aspects such as the origin and quality of the seeds used from 2002 to 2006, or the plaintiff's method of substrate preparation during those periods, influenced the negative germination results. The expert evidence and microbiological analyses showed that those samples did not present pathogenic elements; however, those were only some samples corresponding to the final periods of the commercial relationship in 2006, without knowing the status of the prior conditions regarding seed quality and agricultural practices since 2002. The expert evidence has the value of demonstrating the conditions of the plaintiff's nursery in 2009, the status of the State's nurseries during that same period, as well as the validation of correct agricultural practices for that moment, but it is not possible to deduce from these proofs the prevailing conditions during 2002 to 2006. The laboratory tests are irrefutable in their conclusions, but their value cannot prove that the damage to the seedlings was due solely to the conditions of the substrate supplied by the defendant company on the dates when the damage occurred. Therefore, the grievance that the technical and expert evidence in the case file is sufficient is not admissible. Regarding the grievance of the confession evidence and that it can be deduced from it that the agricultural practices were correct, it is indicated that upon reviewing it (folio 387), it can be deduced that aspects that may influence seedling (almácigos) cultivation, such as seed quality, water, irrigation systems, and agricultural practices, were unknown and not studied at the time the damage occurred. The confessant accepted this in his answer to question eighteen. The appellant's grievance is not admissible when he states that such aspects are not important, but rather that the only thing to consider was whether the deficiency of the substrate caused the claimed damage. This court considers that to have the causal link proven, it must be verified that the indicated aspects did not also contribute to the generation of the damage found in the analyses during the 2002 to 2006 period. As for the grievances regarding what the testimonial evidence proved, it is also not shared, because it is not considered that the analyses and procedures followed by officials Ulises Jiménez Jimenez and Edgar Julián Vega were invalidated, or that the conditions of the State's greenhouses were not optimal; the results obtained are not questioned. What is considered is that such analyses are not sufficient to determine that the damages caused from 2002 to 2006 are solely due to the substrate, even if it had been proved that the substrate did not have an adequate physical composition. Regarding the statement of [Nombre9] (folio 432), although it is a clear and forceful statement indicating that the germination problem was due to the substrate, he points out that the damage began to worsen in 2004, and that before 2005, material had been purchased from CAFESA but it was worse than that from [Nombre4]. Although it is noted that he is a person with knowledge of his work, he assured that he has not received technical training and that regarding the amount of water needed, "he does it purely by eye." This Court agrees with the value given to this statement. Regarding the statement of [Nombre10], it is considered that his deposition in the specific case cannot influence the invalidation of the ruling, because even if he declared having suffered damage with said product, there is also no certainty of the conditions under which the nursery he mentioned owning was managed. His grievance is rejected. This court considers that the testimony of the person who served as the defendant's agronomist, [Nombre8], was adequately evaluated, because it was deduced from it that there were problems with the product, but that the agricultural practices of pre-wetting and compaction were not necessarily followed, which affects the proof of the possibility that the victim's fault contributed to the damage caused and breaks the causal link that must be proven. As indicated in the appealed judgment, the expert evidence was based on granting validity to the analyses of the Servicio Fitosanitario del Estado, but it is not possible to deduce from it that the circumstances and practices of the plaintiff's nursery during 2002 to 2006 did not contribute to the generation of the damage caused in the germinated plants. Therefore, the appellant plaintiff's reproach is also not admissible when he indicates that the evidentiary assessment carried out by the trial judge was made against scientific and technical evidence due to ignorance.

**VII- Damages (Daños y perjuicios).** The grievances in this regard are not shared, because since this Court has not found the causal link that must exist to have upheld the claim, the rejection of the alleged damages, which are the main claim of a process of this nature, is appropriate.

**VIII-Costs (Costas).** As the appellant plaintiff was not ordered to pay damages to the defendant, its grievance is rejected. With respect to costs, this court notes that although the claim was not granted, the party had cause to litigate, as it had a series of technical indications and scientific evidence that provided a basis for filing the claim. Added to the foregoing is that the substrate supplied by the defendant did present deficiencies in its physical qualities that can affect the germination of seedlings; this is deduced from the physical analyses of the official State laboratory and the criteria expressed in the expert evidence. Moreover, the expert himself stated that the technique of cultivating in substrates like the one purchased by the plaintiff was a recently introduced practice in the country. Therefore, based on Article 55 of the Ley de Jurisdicción Agraria, and considering the existing evidence in this case cited regarding the deficiency of the product, it is resolved without a special ruling on costs, so the judgment must be revoked regarding said ruling against the plaintiff.

**IX-** For the reasons stated, the evidence offered for a better resolution, consisting of the statement of Engineer Luis Fernando Avendaño offered by the plaintiff and official letter DSFE 001.2010 offered by the defendant, must be rejected, as both pieces of evidence are unnecessary. The judgment must be partially revoked regarding the ruling on [Nombre5] and instead, it is resolved without a special ruling on costs. In all other matters under appeal, the judgment is affirmed.

**POR TANTO:** The evidence offered for a better resolution is rejected. The appealed judgment is partially revoked only with respect to the ruling on personal and procedural [Nombre5] against Agroverde Dos Mil S.A. Instead, it is resolved without a special ruling on costs. In all other matters under appeal, the judgment is affirmed.

[Nombre17] **DAMARIS VARGAS VÁSQUEZ** **ALEXANDRA ALVARADO PANIAGUA** PROCESO ORDINARIO PROMOVENTE: AGROVERDE DOS MIL SA CONTRA: V J CENTROAMERICA SA [Nombre18] / [Nombre19] + [Nombre19]

| ACTORA [Telf1] DEMANDADO [Telf2] | | | |

VOTO N° 1047-F-11 TRIBUNAL AGRARIO DEL SEGUNDO CIRCUITO JUDICIAL DE SAN JOSÉ. Goicoechea, a las nueve horas nueve minutos del veintinueve de setiembre de dos mil once.- PROCESO ORDINARIO establecido por AGROVERDE DOS MIL SOCIEDAD ANONIMA, cédula jurídica número CED1 , representada por su presidente con facultades de apoderado generalísimo sin límite de suma por el señor [Nombre1] , mayor, casado, comerciante, cédula de identidad número CED2 , vecino de Alajuela ; contra [Nombre2] CENTROAMERICA SOCIEDAD ANONIMA, cédula jurídica número CED3 , representada por su presidente con facultades de apoderado generalísimo sin límite de suma por el señor [Nombre3] , cédula de identidad número CED4 . Intervienen el letrado Juan Manuel Ramírez Villanea en carácter de a bogado director de la parte actora, de calidades desconocidas en autos, y en su condición de apoderado especial judicial de la parte actora el licenciado Edgar León Díaz , mayor, casado, vecino de San José, carné dos mil cuatrocientos veintiocho.Tramitado ante el Juzgado Agrario de Alajuela.-

RESULTANDO:

1.- La parte actora Agroverde Dos Mil Sociedad Anónima solicita se declare en sentencia: " a) Que parte de los sustratos de turba entregados y debidamente cancelados por la actora, venían defectuosos y no aptos para la actividad para la que estaban destinados, tal y como se demuestra con la prueba ofrecida. b) Pese a sus reiteradas comunicaciones con la demandada en ese sentido, ésta nunca asumió la responsabilidad o brindó explicación lógica o científica alguna cerca de dichas fallas en el producto que se les distribuía. c) Que por las razones supracitadas, se condene a la empresa demandada al pago de los daños y perjuicios ocasionados, los cuales se liquidarán en ejecución de sentencia, pues han sufrido además pérdidas de imagen con sus clientes que también se ha convertido en un perjuicio y daño imposible de solucionar. A folio 124, aclara que EL DAÑO consiste en la pérdida sufrida tanto de clientes (mercado) como de credibilidad comercial de la empresa actora, que debe lidiar con la competencia y muchas otra vicisitudes de este tipo de actividad. Se debe traducir en un 20% de la cartera de clientes. Que la fama negativa no se puede cambiar, los comentarios se corren de boca en boca. Valora el daño en VEINTE MILLONES DE COLONES. En cuanto a los PERJUICIOS, indica que si en una cantidad de cuatro millones de semillas, por problemas del material adquirido defectuoso se pierde un promedio de quinientas mil matas al año a un precio de trece colones por cada mata, se deja de percibir aproximadamente la suma de seis millones quinientos mil colones, lo cual si se multiplica por cuatro años, da un de VEINTISEIS MILLONES DE COLONES, solamente en lo que a pérdida de plantas se refiere. Que las indemnizaciones a clientes por pérdida de semillas, solamente en el año 2003 del mes de julio al mes de setiembre ascendieron aproximadamente a una suma superior a los cinco millones y medio de colones. d) Se ordene la suspensión del juicio ejecutivo simple y sus efectos, proceso que corresponde al expediente número EXPN1, por referirse el mismo a una factura por un producto que no funcionó; y que la demandada no procedió a retirar a pesar de habérsele autorizado para ello, y que es precisamente el producto cuyas deficiencias han producido la instauración de esta demanda. e) Se condene a la empresa demandada al pago de ambas costas. f) Se confecciones mandamiento de anotación de la presente demanda ordinaria en los inmuebles que se dirá ", (folios 19 a 20, y 577 a 578).- 2.- La sociedad demandada contestó la demanda mediante escrito de folio 172 a 186, e interpuso las defensas de prescripción y caducidad 3.- La jueza de primera instancia María Carolina Hurtado García en sentencia de las trece horas y cuarenta y ocho minutos del veintiséis de mayo del dos mil diez, resolvió: " POR TANTO: De conformidad con lo expuesto, se rechaza la excepción de prescripción, y se acoge la excepción de falta de derecho. Se declara sin lugar en todos sus extremos la presente demanda ordinaria interpuesta por AGROVERDE DOS MIL SOCIEDAD ANONIMA contra [Nombre4] CENTROAMERICA SOCIEDAD ANONIMA. Se condena a la sociedad actora Agroverde Dos Mil S. A al pago de las [Nombre5] personales y procesales.

4.- La parte actora interpuso recurso de apelación con indicación expresa de las razones en que se fundamenta para refutar la tesis del juzgado de instancia, (folio 596 a 626).- 5.- En la substanciación del proceso se han observado las prescripciones legales, y no se nota la existencia de errores u omisiones capaces de producir la nulidad del fallo.- Redacta la jueza Castro García, y;

CONSIDERANDO

I.- Prueba para mejor resolver. Con fundamento en el artículo 5 2 de la Ley de Jurisdicción Agraria, por estimarse innecesaria para la resolución de esta apelación, deberá rechazarse la prueba ofrecida para mejor resolver de recibir declaración del Ingeniero [Nombre6] ofrecido por la actora y oficio DSFE 001.2010 ofrecido por la parte demandada.

II-. El Tribunal comparte los hechos tenidos por probados en la sentencia impugnada al estar acordes con las probanzas evacuadas en el proceso.- III.- Se avalan los hechos tenidos por indemostrados, por no haber pruebas de las que se pueda deducir lo contrario.- IV- El apoderado especial judicial de la actora, en memoriales presentados a estrados el 11 de junio del 2009 (folios 596) interpuso recurso de apelación contra la sentencia de primera instancia (folio 577). Agravia que interpuso el presente proceso contra la accionada en virtud de existir pruebas biológicas, análisis microbiológico, químico, mineral y físico de que las características físicas del sustrato que la demandada le suministraba resultaba insuficiente y les causó graves daños y perjuicios, así como de credibilidad de su empresa familiar. Reprocha, la demandada no se refirió a la prueba aportada, que si bien la a quo avaló, estimo insuficiente para acoger la demanda. En forma específica expresa las siguientes disconformidades: 1) Sobre hechos probados. Quedó acreditado: a) la actora se dedica a la producción de almácigos de hortalizas para la venta a pequeños y medianos productores. b) del 2002 al 2005 se adquirió de la demandada productos tales como bandejas para desarrollas almácigos sacos con mezcla de turba y perlita para la germinación marca VJ-PMP, c) según la sentencia entre el año 1999 y parte del 2006 se dieron problemas en la fase de germinación del almácigo de tomate, chile y lechuga. Fechas incorrectas, pues el hecho de que uno de los testigos mencionara el año 1999 se debió a un lapsus involuntario; pues en la demanda no se hace referencia a per ío dos anteriores al 2002. Argumenta, de tal error se le ha dado ventaja a la sociedad demandada, aún y cuando en la demanda no se menciona relación comercial de esas fechas y la misma no existió y se le ha restado credibilidad a la abundante prueba técnica. Señala es claro que los problemas con el sustrato existieron, pues la accionada reconoció que enviaba a personeros sin suficiente conocimiento técnico para cambiar los sustratos de mala calidad por otros. Sobre el fondo del asunto, estima la valoración probatoria es contraria a derecho. Aduce no solo su representada resultó afectada por el sustrato VJ-PMP, sino otros dos propietarios de viveros de almácigos que realizaba la misma actividad de la actora en esa época, lo cual se indicó en el fallo que dichas experiencias no resultan de relevancia para la resolución del caso, lo cual es contraria a la lógica jurídica, pues si a otros les afectó el producto, se pone en evidencias los problemas de encharcamiento, mal drenaje y pudrición de raíces. Esgrime, es un daño real y causado también a otros que no pudieron enfrentar el gasto económico de un proceso judicial. Estima que al decir la juzgadora que la demanda de la actora se fundó en conjeturas, es alejarse de los resultados de análisis, peritajes, testigos, Agravia, el daño causado fue de relevancia jurídica, merece amparo y no ha sido reparado. Media relación de causalidad no observada por la juzgadora. Indica un sustrato con deficientes cualidades físicas tiene diversos efectos: encharcamiento por causa de drenajes del agua y mala aireación del sustrato que conduce a una mala germinación de semillas y pudrición de raíces en las plántulas. La a quo estimó no tener suficiente evidencia, que es ir contra la corriente y convencerse de que lo observado no es correcto ni cierto. Combate la falta de valoración y referencia a la evaluación agronómica de las características físicas de los seis lotes del sustrato marca VJ-PMP, que resultó de los análisis físicos de los sustratos elaborados por el laboratorio del INTA, que corresponde a la prueba documental “D” adjuntado al memorial de demanda y no fue refutado. El resultado es la prueba más convincente y contundente e irrefutable, pues el sustrato en cuestión era totalmente deficiente y sus características físicas que no lo hacían apto para el uso vendido. Reclama, lo que debía probarse era que el sustrato suministrado carecía de las condiciones físicas para producir los efectos deseados para los que se adquiría y cita el cuadro de evaluación agronómica, y no las fechas especificas en que se dieron los problemas, lo cual señaló la a quo. Hace hincapié en que la a quo mostró subjetividad y ausencia de conocimiento al resolver un caso técnico. Apela, a la juzgadora le resultó de interés la copia certificada del libro de acta 31 de Inspección del Ministerio de Agricultura y Ganadería, para buscar desvirtuar su demanda en donde señaló, que aún con posterioridad de la interposición de la demanda se observaron deficiencias en la germinación de lechuga. Explica lo anterior indicando que para una empresa dedicada a una actividad tan delicada como la producción de almácigos, que debe compararse a la producción de plantas bebés, realizar un cambio drástico en el material de siembra provoca serios inconvenientes, lo cual conlleva tiempo. Agrega, ante la abrupta suspensión del suministro del producto defectuoso por parte de la demandada, se buscó material sustituto en el cual hubo un periodo de adaptación y ensayo, con sustratos proveídos por otras empresas que en forma necesaria produjeron problemas en la germinación. No obstante el problema se corrigió, pues la casa proveedora SPF Agroplásticos S.A. disponía de un segundo sustrato con mayor granulometría (partículas más gruesas que daban mejor drenaje y aireación al sustrato). Tal punto se aclaró en el informe pericial rendido por el ingeniero Luis Fernando Avendaño. En dicho documento dejó claro sobre el estado en que encontró los estados de germinación de las plántulas y remite a dicho informe y fotografías numeradas 1 a 15; que además reflejan también las condiciones de almacenamiento y manejo de las semillas debidamente certificadas. Agravia, estar disconforme con la decisión de la a quo sobre la falta de certeza, pues con la prueba pericial, prueba de laboratorio y los mismos testimonios y confesionales, se llega a la realidad de lo sucedido. Procede a hacer una análisis de la declaración testimonial de [Nombre7] y al respecto estima media una declaración en su contra al indicar, contrario a lo que dice el fallo, que las prácticas agrícolas y las semillas venían certificadas de la casa productora y las actuaciones por parte del vivero fueron correctas en todo momento. Se extrae que las recomendaciones realizadas por el técnico [Nombre8] empleado de su empresa, no solucionaron el problema, pues el verdadero problema estaba en las características físicas el sustrato y que se han mantenido las mismas prácticas agrícolas, que para la demandada son incorrectas, pero al cambiar la marca del sustrato, no se presentaron más los problemas de germinación reprochados en la demanda. Quedó acreditado que la empresa actora de forma responsable remitió a las entidades competentes en materia fitosanitaria sea el Servicio Fitosanitario del Estado. En dicha instancia se demostró que el problema no consistía en las conjeturas de la demandada cuando alegaba sobre las malas prácticas agrícolas, calidad de las semillas agua utilizada. No contaba tal empresa que no se conformaría la actora con sus explicaciones y acudirían al Estado a través de las entidades oficiales encargadas del tema de la sanidad vegetal de los cultivos y que el resultado de dichas investigaciones llevadas a cabo por métodos reconocidos internacionalmente y con profesionales competentes, le llevarían a plantear esta demanda. Se apela, el fallo no comenta nada al respecto, y pareciera estar disconforme con el hecho de haber acudido a tales instancias para encontrar la causa del problema, que se llegó establecer sin duda alguna. Señala, la demandada mencionó que requería solicitar a la casa proveedora del sustrato en Canadá, una certificación de análisis, de cuya gestión nunca se le hizo conocer su resultado y no fue aportado a los autos. Esgrime, si buen ostenta la actora la carga de la prueba, ello no exime a la demandada a ofrecer la prueba de descargo para refutar los hechos que se le endilgan. Aduce la demandada nunca aporto prueba de haber realizado un reclamo a la casa proveedora por los problemas que generaba su suministro y cuestiona el actuar de la accionada de estar recibiendo este material y se limite a sustituirlo por otro que también resulta ineficaz, sin que medie un reclamo para limpiar su nombre en el comercio o reponer sus pérdidas. Lo anterior le causa extrañeza al recurrente y de tal aspecto ni siquiera se hace mención en la sentencia recurrida. Manifiesta, con esta prueba quedó claro que: a) hasta finales del año 2004 la demandada mediante el señor [Nombre8] inició con la toma de notas de los números que identificaban las pacas. Tal venía por número de lotes, y para efectos de la trazabilidad se trabaja en los sustratos con dicha identificación, que viene impreso en el empaque, y por ello bajo su criterio retiró los que estimaba defectuosos y los cambiaba por otros de mejor estado. Lo anterior produjo la irregularidad en los invernaderos, cuando las semillas germinaban que se manifestaban en forma de parches. Es decir, bandejas buenas, otras mitad buenas y mitad malas, resultando en raíces totalmente grises dañadas por el exceso de agua acumulada por la malas características físicas del sustrato. b) En las facturas emitidas por la demandada no se consignaba el número de lote que se adquiría, lo cual siempre se indica al adquirir por ejemplo semillas. c) no fue realizado estudio alguno por parte de la demandada que les suministrara información del sustrato, lo cual se confirma con el testimonio de [Nombre8] . Se indica por la recurrente, que con la prueba confesional, se explican los motivos por los cuales continuaron utilizando el producto a pesar de los problemas que presentaba. Aunado a ello reseña que no había suficiente opción en el mercado para adquirir producto de buena calidad, que lo hallaron en la marca Klassman suministrado por la empresa SPF Agroplásticso S.A., que si realizaron análisis físicos del sustrato y de inmediato se hizo el cambio, sin que se modificaran las prácticas agrícolas, y los resultados fueron óptimos por el producto de calidad. Agravian que le haber acudido a lo entre estatales competentes, les suministró la base técnica que da el fundamento de la demanda. Sobre la declaración de Ulises Jiménez Jiménez señala que en su condición de funcionario público dio fe de la toma de muestras acorde con la Ley 7664 y su reglamento, lo cual no pudo ser desvirtuado por la demandada. Resalta, las pruebas fueron realizadas apegadas a la legalidad y que no se trataba de plagas o enfermedades, malas práctica u otras conjeturas esbozadas por la demandada que se ocasionaba la mala germinación de semillas, muerte de raíces pos germinación des uniformidad y pérdida de vigor. Indica los resultados del INTA demuestran la mala calidad física del sustrato y las practicas agrícolas fueron las adecuadas. Sobre las semillas, menciona que en cuanto su uso y manejo, se apegan la procedimiento regido por la Oficina Nacional de Semillas y están debidamente registradas y el mismo ingeniero Luis Fernando Avendaño señaló sobre las mismas que se lleva una detallada bitácora en donde se observa el trazo de las mismas, con debida identificación, a quien se les entregó y se descartó que las semillas utilizadas presentaran problemas. Al respecto que nada de lo anterior fue suficiente para la a quo, sin que indicara el motivo del rechazo. Sobre la declaración de [Nombre9] . Se apela, con su decisión se demuestra que el problema estaba en el sustrato vendido y no en otra causa, pues le constaban las pruebas que el señor [Nombre8] hacia para determinar el origen del problema. Tal testigo explicó el modus operando del vivero sin que se le pudiera objetar aspecto alguno, y fue enfático en que el sustrato presenta mucha humedad debido a su fineza y la existencia de una mezcla irregular del producto y cuestiona como una empresa canadiense de renombre iba a suministrar un producto de tan mala calidad técnica: Achaca la demandada no fue en defensa de los clientes en el país ante el suministro de un producto de esa naturaleza, que demuestra una mal sistema de control de calidad antes de su empaque y al no tomar ninguna medida contra su proveedora la hace responsable de los daños ocasionados. Indica, la a quo le restó importancia a esta declaración. Sobre la declaración de [Nombre8] . Aduce, le impresiona la importancia dada en el fallo al único testigo ofrecido por la demandada, en contra posición de un grupo de profesionales en materia fitosanitaria, propietarios de viveros y resultados de pruebas técnicas, e incluso peritajes que debieron ser acepados por cumplir con los requisitos. Sobre este testimonio apunta: la demandada estaba enterada del problema, pues ese testigo era la persona que la empresa enviaba cuando suceden inconvenientes. Dicho testigo aclaró tener experiencia en interpretación de evaluaciones físicas de sustratos, por lo que recurre para ello a laboratorios como Agrotec y Cafesa. Estima trascendental que no fue aportado por el testigo o la demandada ningún documento que mostrara que el señor [Nombre8], ante el problema de la actora sometiera ante los laboratorios que mencionó el problema físico del sustrato en cuestión. Lo anterior era imposible, pues tales laboratorios son especializados en suelos y carecen de metodologías de análisis físicos de sustrato. La demandada no aportó prueba alguna que contradijera los resultados de los entes estatales a través de sus laboratorios. Agravia su testimonio no pudo desvirtuar que los problemas se originaron en las calidades fiscas del sustrato que producen una planta deficiente y anti comercial, y no en elementos patógenos o las malas prácticas agrícolas del Estado. Sobre su testimonio argumenta la recurrente, que trató de apuntar hacia dichas prácticas incorrectas citadas, no obstante el testimonio de [Nombre9] demuestra lo contrario y no pudo ser desvirtuado. Señala que el testigo [Nombre8] indicó que le informaban al fabricante del problema, y se desechaba el producto sin que se sepa quién es el fabricante, en que condiciones se produce, donde se empacaba el producto, así como las respuestas del mismo; que debieron haber sido evacuadas a su distribuidora la sociedad demandada, dentro de una lógica relación comercial. Dicho testigo aceptó que el producto venía con bajo contenido de perlita, que fue lo que originó el reclamo, tal cualidad física se traduce en baja calidad, lo cual se comprobó con los análisis del INTA. Lo anterior, señala, nunca fue comprendido por la juzgadora de primera instancia. Indica que el testimonio en análisis demuestra la mala práctica comercial de su patrona y la deficiencia en la calidad física del sustrato y cuestiona el motivo de la conclusión de la juzgadora de no tener acreditado suficientemente esa calidad deficiente. El testimonio de [Nombre10] . Dicha testigo fue afectada por el producto vendido por la demandada, pues llevó a la quiebra a su empresa Almácigos y Semillas S.A., y se le hizo imposible afrontar un proceso judicial. La testigo argumentó que debió indemnizar a cada cliente que tenía por la mala germinación de sus plantas y ella mantenía buenas prácticas agrícolas pues era supervisada por el Servicio Fitosanitario del Estado y señaló que doce días antes del mayor problema ocasionado propuso a su empresa como modelo para el uso de dicho sustrato y así se realizó con el acompañamiento del señor [Nombre8] . Su testimonio desvirtúa la defensa de la demandada cuando indica que la causa serían las malas prácticas, pues las afectaciones sufridas en su vivero eran las mismas que las del recurrente. Indicó que tal situación fue aceptada aún delante de los socios de la demandada y se dio a la tarea de tratar de ubicar a la casa proveedora, de la cual no obtuvo ninguna información. Sobre el testimonio de [Nombre11] , que era otro usuario presentó idénticos problemas que la anterior testigo y la actora y no podía, al igual que el resto, saber en un inicio el origen del problema y quien también resulto con graves perjuicios económicos. Señala de importancia que la ubicación geográfica de su vivero era muy distante a la de la recurrente. Ocurre lo mismo en el sentido que la empresa demandada ni el señor [Nombre8] pudieron dar respuesta a su problema que se solucionó cuando inició con el uso de un sustrato diverso. Achaca que la a quo valoró la prueba indicando lo hacía con fundamento en las reglas de la sana crítica, pero contra lo arrojado por la prueba técnica y científica. El testigo [Nombre12] , quién es doctor en fitopatología y su asesor, demostró que existía una vigilancia permanente sobre los cultivos en materia de enfermedades y que existía un problema de saturación de aguas que las afectaba. Su presencia comprueba que la empresa estaba asesorada en materia de fitoenfemedades. Dicho testigo fue claro en que el origen de la afectación se debía a causas abióticas, sea falta de oxigenación por saturación de agua y no por agentes patógenos (microorganismos). Aclara que este testigo, tuvo un lapsus cuando indicó sin dolo que había visto el uso del sustrato desde el año 1999, lo cual no es correcto, pues la empresa no tenía en esas fechas relación comercial con la demandada, lo cual no afecta el fondo del asunto Rechazan el que se hubiera descalificado esta prueba técnica y científica, pues considerar que la ciencia y la investigación carecen de razón de ser. Considera que el fallo esta ayuno de fundamento técnico. El testigo [Nombre13] , quien se desempeña como ingeniero fitosanitario del Estado es un testigo técnico que durante el periodo en que se realizaron los análisis era el encargado de los invernaderos en donde se desarrollaban tales pruebas, para observar si existían plagas o enfermedades. Tal persona explicó el procedimiento de siembra en los invernaderos con exclusión de terceros, así como que los resultados de las mismas fueron remitidos a las jefaturas y la existencia del expediente. El resultado arrojado es que no fueron observados plagas o enfermedades, sino un daño mecánico o necrosis en las retículas de las plantas y se recomendó un análisis físico y microbiológico para determinar el origen del daño, pues en un inicio se desconocía el motivo. Su testimonio no pudo ser desvirtuado por la parte demandada, que intentó hacerle caer en contradicción mostrándole fotografías de desconocida procedencia y a las cuales el deponente mencionado respondió que los invernaderos no tenían esas condiciones al momento de hacer las pruebas. La prueba de siembra se realizó de forma objetiva solamente por ellos y en dos ocasiones y la oficial correspondió a la segunda. Tampoco esta prueba le mereció fe a la juzgadora. Sobre el informe pericial. Recurre, dicha prueba fue solicitada por la demandada y fue objetivo y contundente y realizado por un experto que conoce de sustratos, semillas, almácigos. Dicho reporte se elabora en forma posterior a la interposición de la demanda y dejó claro que no había problemas de germinación, de lo cual se valió la juzgadora para beneficiar la posición del demandado. Aduce, el objetivo del informe era para determinar si el sustrato o las malas prácticas de la actora causaron los daños y ello se determinó y la demandada no pudo desvirtuar los hechos alegados en la demanda y haber determinado las deficiencias apuntadas. Achaca, la a quo solo tomó partes de sus declaraciones, y desconocen la forma en que la juzgadora deseaba tener por acreditado los daños y procede a desconocer la prueba más importante y contundente. Sobre los daños y perjuicios. Argumentan, como llegarían a probar estos aspectos, con la tesitura de la juzgadora de instancia que ni siquiera tuvo por demostrar las deficiencias técnicas del sustrato. Al rechazarse la demanda, se denegaron estas pretensiones, y solicitada que tales rubros sean declarados en abstractos, y sea en la vía de ejecución que se ejecuten. [Nombre5]. Reprocha la condena de tales extremos y los daños y perjuicios, cuando han actuado con absoluta buena fe. Los daños y perjuicios solo los ha sufrido la actora, y a la demandada no ha sido perjudicado en nada. Finaliza indicando que la naturaleza de este asunto es más técnica que jurídica. Como prueba para mejor resolver solicita sea llamado el ingeniero [Nombre6] , que tuvo a cargo la interpretación técnica de los análisis físicos, hechos a los sustratos VJ-PMP realizados por el laboratorio del INTA, que es prueba fundamental en este proceso. La parte demandada sin que interpusiera recurso de apelación, ofrece como prueba para mejor resolver oficio DSFE 001.2010 del 4 de enero del 2010, visible de folio 653 a 668 y como argumento de su admisión procede a atacar dicha probanza, pues menciona que tales informes rendidos por el Servicio Fitosanitario del Estado, no se hicieron con la finalidad de servir de prueba en un proceso judicial, y en su elaboración no tuvieron conocimiento vedándose la posibilidad de intervenir en la probanza y aceptar ese medio probatorio le viola su derecho de defensa y es prueba ilegal por provenir del Estado, entre otros aspectos. También procede a ofrecer certificaciones de contador público autorizado que detallan las compras realizadas por los testigos del sustrato que fueron aportadas ante la juzgadora de instancia y que fueron rechazadas por la a quo en esa oportunidad.

º V.-En primer término observa este Tribunal que en la sentencia se desarrolló la solución del caso concreto considerando se estaba ante un reclamo de daños por responsabilidad subjetiva regulada en el artículo 1045 del Código. En tal hipótesis es el damnificado el que debía probar el nexo causal entre el daño y los perjuicios sufridos. Lo anterior se deduce de lo consignado en el párrafo final del considerando sétimo de la sentencia, cuando literalmente reza: " Con la revisión de la prueba evacuada, la suscrita estima no es pertinente imputar a la demandada los problemas de germinación en el vivero de la actora. De conformidad con el artículo 317 del Código Procesal Civil, a la empresa Agroverde Dos mil S.A. compete la carga de la prueba en la demostración del daño, la relación de causalidad y la autoría de la demandada. En la especie no se demostró en forma clara y contundente que el sustrato vendido por VJ-Centroamérica S.A. fuera el exclusivo factor que ocasionara los daños y perjuicios reclamados. Consecuentemente, no es pertinente imponer a la demandada el deber de indemnización de los mismos." ( negrita no es del original). Esta instancia no coincide con lo indicado por la juzgadora de primera instancia en su fallo, pues de la revisión de la demanda y el caso especifico, se logra determinar se está ante una acción cuyo reclamo se origina en una relación de consumo y de la cual se reclaman pagos de daños y perjuicios por responsabilidad objetiva. En términos generales en tal supuesto, la simple existencia del daño reputa la responsabilidad en el agente dañino de haber causado dicho daño y de allí nacería la obligación de indemnizar los daños y perjuicios ocasionados. La carga de la prueba de que tal daño no fue ocasionado en virtud del bien o servicio adquirido por la persona consumidora y desvirtuar la relación de causalidad imputada por la actora, recae en la demandada. Tal y como se expone en los hechos probados 1 a 5, la actora es una empresa dedicada a la producción del almácigos de hortalizas y entre enero del 2002 a marzo del 2006 le compró a [Nombre4] Centroamérica S.A. bandejas para el desarrollo de almácigos y sacos que contenían mezclas de turba y perlita para germinación marca VJ. Durante la relación comercial compró la accionante 4513 sacos de mezcal de turba y perlita para germinación denominado V-J Plug Mix Perlite. La actora achaca problemas en la germinación de los almácigos de chile, tomate y lechuga. Los que identifica con la presencia de pudrición de la radícula, y exceso de agua en el medio de cultivo. Aduce en la demanda que tales inconvenientes se suscitaron debido a las deficiencias en las cualidades físicas del sustrato adquirido para la producción de almácigos, y por ello se condene a la demandada al pago de los daños y perjuicios ocasionados a su empresa. Como se observa de la demanda se reprocha el pago de daños y perjuicios ocasionados por el producto vendido por la demandada a la actora, a ser utilizado en el proceso de producción de almácigos. Por su parte, la demandada contesta (folio 174) aceptando que la empresa Agroverde Dos mil S.A. fue su cliente por algunos años y adquiría entre otros productos el sustrato VJ-PMP, que es un medio de germinación vendido a gran cantidad de empresas. Mismo que consiste en una mezcla de turba de esfango con perlita y otros ingredientes diseñada específicamente para la germinación de semillas. Como se observa, media una relación entre las partes en contienda, en la cual la sociedad actora ostenta la naturaleza de consumidora. Sobre la responsabilidad objetiva, la Sala ha resuelto :".. sólo debe probar que el daño existe y que se produjo como consecuencia directa e inmediata de la actividad desplegada .. No requiere demostración de la culpa o el dolo (culpabilidad en sentido lato), ya que el criterio de imputación es objetivo. Corresponde al juzgador examinar en cada caso si existe o no causalidad directa y adecuada entre el daño reclamado (y demostrado) por el petente y la actividad (activa u omisiva) desplegada.. .”(Fallo no. 662-F-S1-2010, de las 14 horas 20 minutos de 26 de mayo de 2010) y sobre la responsabilidad objetiva a favor del consumidor y su extensión, la Sala Primera ha resuelto: "V.- Responsabilidad objetiva por riesgo en materia del consumidor. En lo que se refiere a la responsabilidad, se pueden ubicar dos grandes vertientes, una subjetiva, en la cual se requiere la concurrencia, y consecuente demostración, del dolo o culpa por parte del autor del hecho dañoso (v.gr. el cardinal 1045 del Código Civil), y otra objetiva, que se caracteriza, en lo esencial, por prescindir de dichos elementos, siendo la imputación del daño el eje central sobre el cual se erige el deber de reparar. Como ejemplo de lo anterior, se encuentra el numeral 35 de la Ley de Defensa Efectiva del Consumidor, en donde el comerciante, productor o proveedor, responderá por aquellos daños derivados de los bienes transados y los servicios prestados, aún y cuando en su actuar no se detecte negligencia, imprudencia, impericia o dolo. Asimismo, es importante considerar, por su influencia en el tema probatorio, que los elementos determinantes para el surgimiento de la responsabilidad civil, sea esta subjetiva u objetiva, son: una conducta lesiva (la cual puede ser activa o pasiva, legítima o ilegítima), la existencia de un daño (es decir, una lesión a un bien jurídico tutelado), un nexo de causalidad que vincule los dos anteriores, y en la mayoría de los casos la verificación de un criterio de atribución, que dependerá del régimen legal específico. En cuanto a la causalidad, es menester indicar que se trata de una valoración casuística realizada por el juzgador en la cual, con base en los hechos, determina la existencia de relación entre el daño reclamado y la conducta desplegada por el agente económico. Si bien existen diversas teorías sobre la materia, la que se ha considerado más acorde con el régimen costarricense es la de causalidad adecuada, según la cual existe una vinculación entre daño y conducta cuando el primero se origine, si no necesariamente, al menos con una alta probabilidad según las circunstancias específicas que incidan en la materia, de la segunda (en este sentido, pueden verse, entre otras, las resoluciones 467-F-2008 de las 14 horas 25 minutos del 4 de julio de 20085, o la 1008-F-2006 de las 9 horas 30 minutos del 21 de diciembre de 2006). En este punto, es importante aclarar que la comprobación de las causas eximentes (culpa de la víctima, de un hecho de tercero o la fuerza mayor), actúa sobre el nexo de causalidad, descartando que la conducta atribuida a la parte demandada fuera la productora de la lesión sufrida. En lo que se refiere a los distintos criterios de imputación, para los efectos del presente caso, interesa la teoría del riesgo creado, la cual fue incluida, en forma expresa, en la Ley de Defensa del Consumidor. El esquema objetivo por el que se decanta la ley, así como la aplicación del criterio de imputación citado, se desprenden de la simple lectura de la norma en cuestión, la cual estipula: “el productor, el proveedor y el comerciante deben responder, concurrentemente, e independientemente de la existencia de culpa, si el consumidor resulta perjudicado por razón del bien o el servicio, de informaciones inadecuadas o insuficientes sobre ellos o de su utilización y riesgos. / Sólo se libera quien demuestre que ha sido ajeno al daño. / Los representantes legales de los establecimientos mercantiles o, en su caso, los encargados del negocio son responsables por los actos o los hechos propios o por los de sus dependientes o auxiliares. Los técnicos, los encargados de la elaboración y el control responden solidariamente, cuando así corresponda, por las violaciones a esta Ley en perjuicio del consumidor.” (la negrita es suplida). Realizando un análisis detallado de la norma recién trascrita, se desprenden una serie de elementos condicionantes de su aplicación. En primer lugar, y desde el plano de los sujetos, esto es, quien causa el daño y quien lo sufre, la aplicación de este régimen de responsabilidad se encuentra supeditada a que en ellos concurran determinadas calificaciones. Así, en cuanto al primero, se exige que sea un productor, proveedor o comerciante, sean estos personas físicas o jurídicas. Por su parte, en cuanto al segundo, la lesión debe ser irrogada a quien participe de una relación jurídica en donde se ubique como consumidor, en los términos definidos en el cuerpo legal de referencia y desarrollados por esta Sala. Se requiere, entonces, que ambas partes integren una relación de consumo, cuyo objeto sea la potencial adquisición, disfrute o utilización de un bien o servicio por parte del consumidor. ....., al existir una relación de consumo, el caso particular debe ser analizado bajo el ámbito de cobertura del numeral 35 en comentario. Asimismo, del precepto bajo estudio se desprende, en segundo lugar, que el legislador fijó una serie de criterios de atribución con base en los cuales se puede imputar la responsabilidad objetiva que regula este cardinal, dentro de los que se encuentra la ya citada teoría del riesgo. Así, este sirve como factor para endilgarle la responsabilidad a los sujetos a que se hace referencia. En esencia, dicha teoría postula que, quien crea, ejerza o se aprovecha de una actividad lucrativa lícita que presenta elementos potencialmente peligrosos para los demás, debe también soportar sus inconvenientes (ubi emolumentum, ubi onus, el cual puede ser traducido como donde está el emolumento, está la carga). De la anterior afirmación se pueden colegir dos características: por un lado, que el riesgo proviene de una actividad de explotación; y por el otro, al ser realizada por el ser humano, se excluyen los denominados hechos de la naturaleza. Concomitantemente, importa realizar algunas precisiones en cuanto a los riesgos aptos para la generación de la responsabilidad, ya que no todo riesgo implica el surgimiento, en forma automática, de esta. En la actualidad, la vida en sociedad ofrece un sinnúmero de riesgos, de distintos grados y alcances, al punto que se puede afirmar que es imposible encontrar una actividad cotidiana que se encuentre exenta de ellos. En esta línea, la interpretación de las normas no puede partir de una aversión absoluta y total al riesgo, el cual, como se indicó, forma parte integral de la convivencia societaria y de los avances tecnológicos que se integran a esta. Lo anterior lleva a afirmar que, para el surgimiento del deber de reparación, el riesgo asociado con la actividad debe presentar un grado de anormalidad, esto es, que exceda el margen de tolerancia que resulta admisible de acuerdo a las reglas de la experiencia, lo cual debe ser analizado, de manera casuística, por el juez. El segundo punto que requiere algún tipo de comentario es en cuanto al sujeto que deviene obligado en virtud de una actividad considerada como peligrosa. Como ya se indicó, el criterio de imputación es, precisamente, el riesgo creado, lo que hace suponer que la persona a quien se le imputa el daño debe estar en una posición de dominio respecto de aquel, es decir, debe ser quien desarrolla la actividad o asume las posibles consecuencias negativas asociadas, recibiendo un beneficio de ello. Este puede ser directo, el cual se puede identificar, entre otros, con los ingresos o emolumentos obtenidos a título de contraprestación, o bien indirectos, cuando la situación de ventaja se da en forma refleja, como sucede con los mecanismos alternos que tiendan a atraer a los consumidores, y en consecuencia, deriven en un provecho económico para su oferente. Es importante mencionar que en una actividad es dable encontrar distintos grados de riesgo, los cuales deben ser administrados por aquel sujeto que se beneficia de esta, circunstancia que ejerce una influencia directa en el deber probatorio que le compete, ya que resulta relevante para determinar la imputación en el sub judice. Lo anterior, aunado a la existencia de causales eximentes demuestra que la legislación en comentario no constituye una transferencia patrimonial automática. VI.- En la especie, las pretensiones de la actora fueron acogidas por mayoría por el Tribunal, quién consideró que el funcionamiento del sistema de banca electrónica presenta una peligrosidad tal que permite imputar los daños irrogados al Banco. ......... . Tal y como lo. preceptúa el numeral 35 de la Ley de Protección al Consumidor, ha habido un perjudicado en razón del servicio, que al ser utilizado (y en vista de su carácter riesgoso) produjo una lesión importante a quien figura en el proceso como parte actora. En consecuencia, en vez de una indebida interpretación de la norma, se ha dado al artículo el recto y correcto sentido..... Aunado a lo anterior, no puede perderse de vista que el surgimiento de la responsabilidad depende de la existencia de antijuridicidad, sin que la objetiva sea la excepción, debiéndose determinar, en este caso, si el afectado se encontraba en la obligación legal de soportar el daño, tal y como se extrae del principio de indemnidad patrimonial. Esta antijuridicidad de base, se identifica, en la especie, con el riesgo existente en el funcionamiento del servicio, según se desprende del propio acervo probatorio cuya indebida valoración se reclama. Es por lo indicado hasta este punto, que no es de recibo los argumentos expuestos por el recurrente en el sentido de que la obligación de seguridad es de naturaleza comercial y no jurídica. Como ya se adelantó, el desarrollo de actuaciones asumidas por un sujeto de derecho, y que previsiblemente tengan la potencialidad de causar daños, lleva implícito el deber de garantizar la seguridad de estos. En esta línea, no se trata de que el demandado demuestre la diligencia que ha asumido, ya que este es un aspecto propio de un sistema subjetivo de responsabilidad.......VII.- En suma a lo expuesto, en el caso concreto no se demostró la concurrencia de una eximente de responsabilidad, como lo sería la culpa de la víctima, el hecho de un tercero o la fuerza mayor. Si bien se alude a la primera, no existen, dentro del acervo probatorio, elementos suficientes que permitan afirmar que la víctima tuvo participación en la producción del daño. De haberse probado alguna de estas circunstancias, sería imposible establecer un nexo de causalidad entre la conducta del Banco y la lesión, por lo que no podría surgir un deber de reparar a cargo del ente. Tal y como ya se manifestó, la existencia de una eximente implica que la causa del menoscabo puede ser vinculada a otro sujeto, o lo que es lo mismo, que el demandado resulta ajeno al daño irrogado. En todo caso, en la especie no se logró demostrar la concurrencia de una causa eximente o bien, que la Ley de Protección al Consumidor no sea aplicable, por lo que, al existir un daño como consecuencia de un servicio riesgoso, en los términos del numeral 35 del cuerpo normativo citado, no se aprecia una indebida aplicación del régimen jurídico por parte de los juzgadores de instancia." (Sala Primera de Casación, No. 1098-09, de las 14:45 del 22 de octubre del 2009). Lo resuelto por ese alto Tribunal, que es compartido por esta sede y encuentra su fundamento legal en el artículo 41 de la Constitución Política y el 35 de la Ley Efectiva del Consumidor, además de lo preceptuado en forma específica para la actividad que desarrolla la sociedad demanda en la Ley de Protección Fitosanitaria que reza:"Artículo 32. “Quienes importan, fabriquen, formulen, reenvasen, reempaquen, distribuyan, almacenen, transporten, vendan y apliquen sustancias químicas, biológicas o afines para uso agrícola, estarán obligados a resarcir los daños y perjuicios que, con sus acciones u omisiones ocasionen a la agricultura, la ganadería, la salud humana y el ambiente”. Por su parte en el tema del daño y el riesgo este Tribunal ha reseñado algunos criterios doctrinales de pertinencia: "V. La doctrina moderna por su parte, ha apoyado la objetivación de la responsabilidad, al comprender dentro de los factores de imputabilidad y atribución legal del daño, aparte de la culpa y el dolo, el riesgo. Incluso se ha propuesto incluir como otros factores objetivos: garantía, equidad, abuso del derecho y exceso de la normal tolerancia entre vecinos. Se ve el daño entonces no desde el hecho del autor sino desde la posición del perjudicado, para procurar que todo daño causado en forma injusta sea reparado. Desde otro punto de vista, se ha separado la culpa de la ilicitud del hecho, dándole un rol más importante a éste. “Una vez rota la equiparación entre la ilicitud del hecho y la culpa, la conducta adquirió una fisonomía autónoma desligada del perfil subjetivo de la voluntad del agente, para constituirse en un simple medio, causa o criterio de conexión entre un sujeto tenido por responsable y un cierto evento dañoso a resarcir”. (Franzoni (Massimo), La Actividad peligrosa, en Responsabilidad por daños en el tercer milenio, Abeledo Perrot, Buenos Aires,1997, p.120). Se habla así de la Teoría del riesgo, la cual no desplaza la culpa sino que la complementa, y se resume como el deber de quien crea un riesgo de indemnizar el daño que provoque a un tercero. “El riesgo es causa de imputabilidad cuando debido a la realización de ciertas causas y determinadas actividades, calificadas como peligrosas, se produce un daño. El daño en estas circunstancias debe resarcirse, no porque su agente haya incurrido en dolo o culpa, sino porque el orden jurídico debe proteger a la comunidad por el desarrollo de actividades peligrosas, de forma que quien las realiza incurre en responsabilidad si se ocasiona un daño en virtud de tal realización… La responsabilidad derivada del riesgo no depende del dolo o la culpa del agente sino que se origina en la mera ocurrencia del daño consecuente de la actividad peligrosa. Esta consideración trae consigo un régimen especial de la prueba, según la cual, por el solo ejercicio de la actividad insegura se presume la culpa del agente, exonerándose la víctima de la tarea de demostrar una conducta indebida. Al agente le corresponde desvirtuar la presunción…” ([Nombre14] , Hecho imputable dañoso en Del daño, Editora Jurídica, 1° Ed,Colombia,2001, p.260). Para otros autores, “la relación causal es un elemento del acto ilícito y del incumplimiento contractual que vincula el daño directamente con el hecho antijurídico, e indirectamente con el elemento de imputación subjetiva o atribución objetiva. Es el factor aglutinante que hace que el daño y la culpa, o en su caso el riesgo, se integren en la unidad del acto que es fuente de la obligación de indemnizar” (ver [Nombre15] (), El perfil de la responsabilidad civil al finalizar el siglo XX en Responsabilidad por daños en el tercer milenio, Abeledo Perrot, Buenos Aires, 1997, p.24 a 26)." ( Voto 541-F-11 Tribunal Agrario).

VI-Estima esta sede, que tanto la sociedad actora como la demandada, contribuyen al desarrollo de una actividad estratégica y fundamental para el estado costarricense, pues aseguran la seguridad alimentaria de la nación y tienen bajo su responsabilidad el deber de promover el desarrollo de la actividad agrícola de tal forma que se proteja la condición fitosanitaria de las plantas. Para ello los viveros, bancos de semillas, almácigos y empresas de esta naturaleza, son reguladas y protegidas por el Estado mediante la dotación de una estructura estatal técnico especializada, para coadyuvar y controlar sus actividades y evitar problemas graves como la propagación de plagas, protegiendo la salud humana y el ambiente. Para ello se han instaurado una serie de leyes y reglamentos dirigidos a establecer las disposiciones técnicas y legales de observancia obligatoria para los productores. Dentro de ese marco normativo encontramos la Ley de Protección Fitosanitaria número 7664 y el derogado Reglamento de Viveros y el decreto vigente número 33927-MAG Reglamento de Viveros, Almácigos, Semilleros y Bancos de Yemas publicado en La Gaceta del 30 de octubre del 2007. Dicho reglamento en su artículo cuarto establece la obligatoriedad de estos establecimientos dedicados a las actividades que regulan a estar debidamente registrados ante el Programa de Viveros y cumplir con las medidas fitosanitarias específicas para cada actividad. El artículo 14 de este reglamento establece la potestad del Servicio Fitosanitario del Estado de tomar muestras que serán llevadas a los Laboratorios Oficiales para el diagnóstico de presencia de plagas o enfermedades y para ello se encuentran facultados los inspectores fitosanitarios. Observa esta sede, que los diversos agravios están relacionados con el valor dado a los elementos de prueba por parte de la juzgadora de instancia, que no tuvo por acreditado que el daño reprochado de los problemas en la germinación de los almácigos fueran ocasionados exclusivamente por el uso del sustrato vendido por la sociedad [Nombre4] Centroamericana S.A. La inconformidad del recurrente radica en que la a quo no consideró la prueba científica, técnica y pericial para tener por acreditado que el sustrato ocasionó los daños a las plantas del vivero de la actora durante el periodo que va desde del enero de le 2002 a 2006, así como el valor dado a los testimonios y prueba documental. Tal y como fue explicado en el considerando anterior, los eximentes de responsabilidad de la sociedad accionada sería la fuerza mayor, culpa de la víctima o hecho de un tercero, que deben estudiarse para determinar si se encuentran presentes y logran romper el nexo causal entre la conducta y el daño reclamado por la actora. La parte demandada ha alegado a su favor culpa de la víctima y hecho de un tercero, pues a pesar de haber aceptado que el sustrato vendido tenía problemas en su composición física, arguye que los problemas de germinación no pueden endilgársele solamente al sustrato. Traen a colación que la actora en su proceso de producción recibía semillas de sus diversos clientes, tenían problemas de riego, y no acataron sus disposiciones técnicas en el uso del producto y desarrollaban malas prácticas agrícolas en sus viveros. Agravios. Sobre la falta de valoración de la prueba científica y técnica y tener con ella acreditado el nexo causal. La parte agravia que la a quo indicó carecer de suficiente evidencia para tener por acreditados los hechos. En el considerando sexto de la sentencia, se motivó que en virtud de la prueba confesional se tuvo por acreditado que a la empresa actora le suministraban las semillas sus clientes. También tuvo por probada la relación comercial entre las partes de enero del 2002 a marzo del 2006 en la cual, se produjo la venta entre otros productos, del sustrato utilizado en el proceso productivo de la accionante. En el fallo se obtienen dichas conclusiones de las pruebas documentales de facturas y prueba confesional. Se admitió por parte de la demandada que se compraron 4513 sacos de dicho producto. Se describe se presentaron problemas con el sustrato que afectaron la germinación. En este aspecto se indica en la sentencia, que no se demostraron las fechas específicas en que se produjeron tales inconvenientes, así como la cantidad de semillas y plántulas que sufrieron esas circunstancias. Se consigna la falta de claridad de la fecha concreta en que inició ese problema en los almácigos de Agroverde Dos Mil S.A. La a quo fundamenta esta conclusión en el testimonio de [Nombre12] , mismo que indicó que tales problemas de saturación de humedad en las raíces venían presentándose desde el año 1999. La a quo señala también que para el año 1999 la demandada no le vendía el sustrato a la actora. También se apoya en el testimonio de [Nombre9] , que depuso que el mayor problema se suscitó desde finales del 2004 a principios del 2005, que fue donde se produjo el problema. La parte recurrente agravia que la fecha indicada por el testigo [Nombre16] se debió a un lapsus, pues en 1999 no había relación comercial aún con la vendedora del sustrato y la misma demandada indica las fechas en que ocurrieron las ventas. Estima esta sede, que no puede ser aceptado tal agravio, pues así se ha consignado en el acta al efecto y no puede variarse, pues de tales declaraciones se tuvo conocimiento por todas las partes del proceso y nunca fue objetada o solicitada fuera corregida la fecha mencionada por tal testigo. Lo que sí ha quedado consignado es la existencia de la relación comercial entre las partes en contienda y que al finalizar la relación comercial la sociedad demandada le vendió a la accionante el sustrato al que se le achacan los problemas de germinación, tal y como se consignó en el fallo apelado. La sentencia indica que tampoco quedó acreditado que los daños alegados en las plantas se debían exclusivamente al sustrato. Además se señaló que fue aceptado que no se siguieron las recomendaciones técnicas dadas para el uso del sustrato por parte del regente de la empresa vendedora. La parte recurrente agravió en tal sentido, que en la sentencia se le dio importancia a la falta de demostración de las fechas de los daños, cuando lo importante era llegar a determinar que por las deficiencias en las características físicas del sustrato se ocasionaron los problemas de retención de humedad, un inadecuado drenaje y aireación provocaban daños a las plántulas. Señaló la no valoración de la prueba "D" Análisis Físico del sustrato, la prueba pericial y confesional. En este aspecto no lleva razón la apelante. Para declarar con lugar esta demanda, debe quedar claro el nexo de causalidad entre la conducta y el daño irrogando. De la valoración de la prueba del análisis físico del sustrato y la prueba pericial vertida en este asunto, ha quedado demostrado que el sustrato analizado tenía deficientes cualidades físicas y que tales podían provocar daños en la germinación de las plantas. Lleva razón la a quo cuando motiva en la sentencia que las probanzas no le resultaban suficientes para acreditar que el daño fuera ocasionado únicamente por dicho sustrato y que no queda claro que el procedimiento aplicado por la actora en el sustrato en sus instalaciones, fuera coincidente con el desarrollado por el Estado en su estudio. Lo anterior al ser aceptado por la parte actora en su demanda, que las semillas utilizadas eran dadas por diversos clientes y que no fueron aceptadas las recomendaciones en el proceso de modificar las prácticas agrícolas por parte del regente, pues no se encontraron de acuerdo con las mismas. Por otra parte, tal y como se señala en la sentencia, las muestras analizadas lo fueron con posterioridad al periodo reclamado por la actora, pues los problemas inician en el año 2002, y la prueba de análisis físico identificada D es del año 2006. Aunado a ello la prueba pericial es de marzo del 2009. Si bien logra determinarse que el producto muestreado por el Estado era deficiente, no es posible deducir por los motivos indicados, que los daños en las plantas sean por el sustrato únicamente o que no mediaran situaciones ajenas al producto que interfirieran en la planta germinada. Sobre las pruebas a las que no se les otorgó valor que tenían se menciona en la apelación las siguientes: prueba A- Prueba biológica realizada en el Ministerio de Agricultura y Ganadería, Servicio Fitosanitario del Estado, Diagnóstico Fitosanitario, Invernaderos del 5 de junio del 2006. (folio 4) que informa sobre el resultado de la siembra de Lechuga Lactuca Sativa variedad Gulf Stream en sustratos suministrados por la empresa Agroverde Dos Mil S.A en cinco lotes identificados con los números de 1975 a 1980. Dicho informe concluye que el daño radicular presente en las plantas no germinadas "puede ser" como consecuencia de las características físicas o químicas del sustrato, pues en la parte foliar no se observaron daños causados por patógenos y recomienda un análisis físico, químico y microbiológico de los sustratos. En el Análisis Microbiológico. Prueba B (folio 5) se concluyó que no se encontraron hongos ni bacterias patogénicas (causantes de plagas y enfermedades en las plantas). El Análisis Químico Mineral de los sustratos orgánicos identificando los mismos lotes descritos Prueba C fue aportado (folio 6). En lo que resulta pertinente el Análisis Físicos. Prueba D (folio 7) se determinó la retención de humedad. A folio 234 consta acta número 21 del 28 de abril del 2006 del Servicio Fitosanitario del Estado. En ella se consigna que el funcionario de esa dependencia Ingeniero Ulises Jiménez Jiménez, se presenta a Agroverde Dos mil S.A. para las tomas de muestras de análisis de laboratorio ya mencionadas del INTA para la determinación de las características físicas, químicas, microbiológicas del lote muestreado. Indicando que los lotes muestreados son: 1212505, 1312505, 0912505, 1001505, 11011505, 1201505 y dichas muestras se les coloca el marchamo de 1975 a 1980 y describiendo cual corresponde a cada lote, y la mención de quedar bajo custodia del MAG y que el material muestreado corresponde al sustrato producido en Canadá y vendido por VJ- Centroamericana S.A. La parte demandada aportó con la contestación de la demanda dos ensayos que se realizaron en el año 2002 en virtud de los problemas que se presentaban con la germinación de las plantas. A saber consta Ensayo 002-02: Chile Dulce del 1 de noviembre del 2002 (folio 135). Dicho informe de ensayo es emitido por la empresa demandada mediante el regente Ingeniero Agrónomo [Nombre8] . Describe un ensayo de cultivo de semillas de chile dulce, las cuales están debidamente certificadas y en el mismo se procedió a realizar el cultivo de las semillas utilizando el procedimiento usual de la sociedad demandada. Como observaciones y recomendaciones, se describieron algunas prácticas que debían ser evitadas y no haber encontrado ningún problema con el medio que afecte las raíces. De igual forma se indicó que la compactación con rodillo, afecta las plantas en forma negativa en su germinación y señala la necesidad de pre mojar el sustrato con la finalidad que tenga presente humedad uniforme antes de llenar las bandejas, detallando el método a seguir, se le hizo saber que la estibación de bandejas les afecta en la compactación y que se obtuvo una germinación en un 91% en buenas condiciones. Se hizo la observación que el productor utiliza medios de cultivo de diversos fabricantes. Las recomendaciones se inclinan a indicar que no debe compactarse con rodillo los cultivos y deben humedecer en forma previa al llenado de las bandejas con el sustrato en la forma allí explicada y no aplicar riego después, como lo viene haciendo el productor. También se aportó un ensayo de semilla de Lechuga denominado 001:02 del 1 de noviembre del 2002 (folio 146). En el mismo se obtuvo un buen resultado de germinación y se anotaron las mismas recomendaciones con respecto a las prácticas agrícolas del productor. Se solicitó por la accionada se rindiera dictamen pericial, que consta de folio 323 a 331, del cual se dio audiencia, sin que fuera objetado por ninguna de las partes. De la lectura de dicha prueba pericial, se denota que su objetivo es: determinar si lo problemas denunciados por Agroverde 2000 S.A. fueron causados por las características del sustrato importado y vendido por [Nombre4] Centroamericana S.A. o por un mal manejo del mismo u otra causa. Se especifica por el perito que el trabajo de campo se realiza entre el 10 de enero del 2009 y 13 de febrero del mismo año en las instalaciones de la actora. Explica el perito que procedió a visitar otros viveros que desarrollan el mismo proceso productivo, se entrevistó con personeros del Servicio Fitosanitario del Estado y realizó otras averiguaciones. Inicia indicando que el uso de sustratos para la producción de plántulas de hortalizas es reciente en el país, pero que actualmente es una práctica generalizada. Cita la importancia de una buena calidad de almácigos para todo proyecto agrícola, pues de ello dependerá el éxito o fracaso de dicho proyecto y por ello resulta relevante el conocimiento de las características químicas, físicas y microbiológicas de ese sustrato, pues acorde con eso se programa el plan de desarrollo de las plantas en los invernaderos. En el caso en concreto se cuestionan las características físicas de la turba (sustrato) proporcionado por la demandada. Menciona, su reclamo se limita estudiar las cualidades físicas del sustrato, por cuanto de los mismos resultados aportados por la actora, se deduce no existen problemas con las cualidades químicas y microbiológicas. La pericia indica que la granulometría y el tipo de material determinan las características físicas de un sustrato y entre las que menciona: índice de grosor, densidad aparente, densidad real y retención de humedad a diferentes presiones de succión, que son factores que permiten calcular la porosidad y la relación agua: aire del sustrato. El dictamen hace explicaciones técnicas de conceptos de la composición de los sustratos y los efectos beneficios o negativos que producen en los cultivos y en este punto concluye que para tener un sustrato en buenas características físicas, el mismo debe reunir condiciones apropiadas y balanceadas que permitan el desarrollo adecuado de las plantas. El informe describe que se comprobó dentro del proceso productivo de la actora que el lugar donde se almacenan las semillas, cumple con los requisitos. El perito describe el proceso de producción encontrado en el vivero de la demandada y apuntó que observó la mayoría de las pacas que supuestamente causaron el daño a las plantas. Señaló haber observado 19 sacos de los 34 que se indicaron en la demanda que mantenía en su poder la actora. Cita 7 son del lote V-J 1001505,8 del lote V-J 10101505 , dos del lote V-J 1212505 y dos del lote V-J 1201505. Resulta de importancia mencionar que dicho perito informó que visitó las instalaciones del Ministerio de Agricultura y Ganadería y conversó con el ingeniero Ulises Jiménez Vega , que fue el encargado de tomar las muestras en Agroverde 2000 S.A. y pudo observar las muestras custodiadas, posteriormente se apersonó al laboratorio en donde se realizaron los ensayos y los encontró en óptimas condiciones y se le facilitó por parte del Ingeniero Edgar Vega Zúñiga, quien tuvo a cargo la evaluación del proceso de desarrollo de las plántulas, le remitió copia del informe que levantó al efecto. Posteriormente se dispuso a visitar los invernaderos del Servicio Fitosanitario del Estado y dejó constancia de que las condiciones de manejo son aceptables. El perito procede a contestar cada una de las preguntas que al efecto la sociedad demandada solicitó evacuara y de las mismas se deducen aspectos de fundamental consideración para la resolución de esta litis. A la pregunta primera respondió que pudo ser posible que el causante de los problemas de la actora se produjera por el sustrato suministrado. Explica que lo anterior se deduce del resultado del análisis físico de las muestras que hizo el MAG, que mostraron que en más del 80% se presentaban partículas menores a 1mm y una excesiva retención de humedad a tres diferentes presiones de succión. Apunta, lo anterior es grave, pues ello provoca deficiente aireación de la planta, y como consecuencia un mal desarrollo radicular. En la pregunta segunda asegura que puede darse un problema de germinación en una misma bandeja de forma irregular, por parches o en toda ella, pues acorde con lo que arrojó el resultado del análisis del MAG, la muestras presentan entre un 80% a 82% de material muy fino y entre un 18% y 20% de particular mayores a 1 mm y si se encuentra distribuido en forma deficiente dentro de la paca, pueden darse los situaciones apuntadas de la germinación. El cuestionamiento tercero deja claro que los daños ocurridos en las bandejas de germinación en donde se dio un desarrollo no uniforme y por parches no fueron por contaminación, pues los resultados del laboratorio no mostraron presencia de patógenos. También apuntó que el manejo de los fertilizantes, agroquímicos, preparación del sustrato y sistemas de riego se hace de forma segura y apegados a los lineamientos técnicos y sobre las semillas se llevan controles y bitácoras detalladas donde se rastrean por número, fechas de ingreso, empaques y su destino. La cuarta pregunta se dirige a combatir la confiabilidad de las investigaciones realizadas en los laboratorios del Servicio Fitosanitario del Estado, que utilizó una bandeja de 98 cavidades en sus estudios y si eso no era agregar una nueva variable. El perito al respecto contesta que el número de huecos contenidos en una bandeja, no es determinante para obtener los resultados deseados en la prueba, pues lo importante es conocer si se repite o no el problema presentado en los diferentes lotes muestreados por los supuestos problemas físicos. Sobre la calidad de semilla, se pregunta si era necesaria la certificación de semillas y su calidad antes de las pruebas. El perito indica que pudo ser bueno un análisis de calidad de la semilla para dar mayor formalidad científica a la evaluación, pero que en el caso no era determinante, pues según averiguaciones la semilla en dicha época, no reportó problemas ni de vigor ni de germinación. Y agrega que cuando un sustrato tiene problemas físicos, no es importante si se utiliza semilla de lechuga, tomate o chile, pues los mismos síntomas pueden presentarse utilizando otras semillas. El perito responde ante la pregunta si era necesario describir el procedimiento del laboratorio en la investigación, afirmando que no lo era, pues son profesionales los que preparan el medio y asumen los resultados obtenidos. Agrega que el ingeniero Edgar Vega le manifestó que se utilizó el procedimiento de rigor para preparar el medio para cada una de las seis muestras y sus repeticiones. El perito en la pregunta identificada como 4-4 indica que el sistema de riego utilizado en el análisis del Servicio Fitosanitario del Estado no influyó en el resultado del porcentaje de germinación, pues el mismo asegura la debida humedización de las plantas en las bandejas. El perito responde a la pregunta siguiente que se refiere al momento del proceso de germinación en que se evaluó el daño en la raíz de las plantas de lechuga, que tales evaluaciones se pueden hacer al tercero o cuarto día y haberlo realizado a los 6 días posteriores como sucedió, fue un tiempo suficiente y adecuado para llevar a cabo tal evaluación. En la última pregunta se le cuestiona al perito si debió haberse llevado a cabo un procedimiento en la investigación del Servicio Fitosanitario del Estado con método científico con algunos aspectos, tales como la presencia de un representante del sector comercial. Se responde que toda investigación requiere un método científico, pero no en toda es requisito indispensable llevar un diseñó experimental y un análisis estadístico. Agregó, éste es uno de esos casos en que no es necesario, pues bastan dos repeticiones, como parece se hizo, para tener la certeza técnica necesaria y analizar los resultados. Se menciona que hubiera sido interesante introducir otro sustrato, pero que en el caso concreto los análisis realizados son prueba irrefutable que el problema se originó en las características físicas de los diversos lotes del sustrato cuestionado y con respecto a la calidad de las semillas estima no influye, pues las germinaciones fueron buenas, y que los aspectos de riego, fertilización y luz no desvirtúan que los análisis fueron adecuados. Estima esta sede, con respecto al peritaje, lo mismo que se señala en la sentencia, respecto a la falta de acreditación en autos del nexo causal, que requeriría tener la certeza de que los problemas generados en las plantas de la sociedad actora durante el periodo alegado, fueron consecuencia del sustrato vendido en forma exclusiva. Lo anterior por cuanto los problemas apuntados iniciaron en el año 2002 y el perito emite criterio de lo observado en el proceso productivo de la actora en el año 2009, y las prácticas agrícolas del año 2002 a 2006 no pudieron ser evaluadas como para determinar el nexo causal solamente con respecto del sustrato en mención. De igual forma, tampoco es posible conocer de la certificación de todas las semillas involucradas en las plantas dañadas, pues en la prueba confesional del señor Soto Bravo se aceptó que las semillas provenían de diversos clientes y “algunas” venían certificadas (pregunta 3 y 4 folio 384), y que las prácticas agrícolas recomendadas por el regente de la demandada no fueron seguidas siempre, pues contaban con un criterio técnico diverso. (pregunta sexta y quinta folio 389). Sobre las prácticas recomendadas en el proceso del cultivo, consta en autos prueba documental de folio 135 a 139 ensayos elaborados por la empresa demandada en donde se le recomendó a la actora procediera a realizar un cambio en algunos aspectos, tales como no compactación con rodillo, el pre mojado del sustrato, que no fueron acogidos de forma permanente por la actora. No hay claridad con las pruebas que constan en autos, que dicha prácticas fueran acatadas y que el nexo causal de daños a las plantas se acredite solo al sustrato en cuestión. La parte recurrente aduce que con la prueba técnica se demuestra su reclamo, no obstante esta sede considera, que si bien de la misma se deduce que las muestras del sustrato arrojan una deficiencia en sus cualidades físicas, que producen problemas en las plantas, la falta de conocimiento de aspectos tales como el origen y calidad de las semillas utilizadas del año 2002 a 2006, o la forma de preparación del sustrato de la actora en esos periodos influyó en los resultados negativos de germinación. La prueba pericial y análisis microbiológicos arrojaron que esas muestras no presentaban elementos patógenos, sin embargo esas solo fueron unas muestras correspondientes a los últimos periodos de la relación comercial en el 2006, si saber el estado de las condiciones anteriores en cuanto la calidad de semillas y las prácticas agrícolas desde el año 2002. La prueba pericial tiene el valor de demostrar las condiciones del vivero de la actora en el año 2009, el estado de los viveros del Estado para esa misma época, así como la validación de las correctas prácticas agrícolas para ese momento, pero no es posible deducir de dichas probanzas las condiciones imperantes durante el año 2002 a 2006. Las pruebas de laboratorio resultan irrefutables en sus conclusiones, pero su valor no puede acreditar que el daño a las plántulas se deba solamente a las condiciones del sustrato suministrado por la empresa demandada en las fechas en que ocurrieron los daños. Por ello no resulta de recibo el agravio de que es suficiente con las pruebas técnicas y periciales que constan en autos. Con respecto al agravio de la prueba confesional y que de ella se deduce las prácticas agrícolas fueron correctas, se indica que revisada la misma (folio 387) se deduce que se desconocen aspectos que pueden influir en los cultivos de almácigos tales como calidad de semillas, agua, sistemas de riego, prácticas agrícolas, que no fueron estudiadas al momento en que se presentaron los daños. Así lo aceptó el confesante en su contestación a la pregunta dieciocho. No resulta de recibo el agravio del apelante cuando se refiere que tales aspectos no son importantes, sino que lo único a considerar era si la deficiencia del sustrato causaba los daños reclamados. Estima esta sede que para tener por comprobado el nexo causal, se requiere constatar que los aspectos señalados no contribuyeron también a la generación de los daños encontrados en los análisis durante el periodo 2002 a 2006. Por su parte los agravios de lo que acreditaba la prueba testimonial, tampoco se comparte, pues no se considera que los análisis y procedimientos seguidos por los funcionarios Ulises Jiménez Jimenez y Edgar Julián Vega, hubieran sido desvirtuados o que las condiciones de los invernaderos del Estado no eran óptimas, los resultados arrojados no se cuestionan. LO que se estima es que tales análisis no son suficientes para determinar que los daños ocasionados desde 2002 a 2006 sean solamente por el sustrato, aún y cuando se hubiera logrado acreditar que el sustrato no contaban con una adecuada composición física. Sobre la declaración de [Nombre9] (folio 432) si bien rinde una declaración clara y contundente en señalar que el problema de germinación se debía al sustrato, señala que los daños empiezan a gravarse en 2004, y que antes del 2005 se había comprado material a CAFESA pero era más malo que el de [Nombre4]. Si bien se denota es una persona con conocimiento de su labor, aseguró que no ha recibido capacitación técnica y que con respecto a la cantidad de agua que se necesita “lo hace a puro ojo”. Se encuentra conforme esta Tribunal con el valor dado a esta declaración. Sobre la declaración de [Nombre10] , se estima que su deposición en el caso concreto, no puede incidir en desvirtuar lo fallado, pues si bien declaró haber sufrido daños con dicho producto, tampoco se tiene certeza de las condiciones en las cuales se daba el manejo del vivero que mencionó poseer. Se rechaza su agravio. Estima esta sede que el testimonio de quien fungió como regente de la demandada [Nombre8] , fue valorado adecuadamente, pues del mismo se dedujo que existían problemas con el producto, pero que las prácticas agrícolas de pre mojado y compactación no fueron necesariamente acatadas, lo cual incide en la acreditación de la posibilidad de que medie culpa de la víctima en el daño causado y se rompa el daño causal que debe quedar comprobado. Tal y como se indicó en la sentencia apelada, la prueba pericial se fundamentó en otorgarle validez a los análisis del Servicio Fitosanitario del Estado, pero no es posible deducir de ella que las circunstancias y prácticas del vivero del actor durante 2002 a 2006 no contribuyeron a la generación de los daños causados en las plantas germinadas. Por ello tampoco resulta de recibo el reproche del actor recurrente, cuando indica que la valoración probatoria realizada por la juzgadora se hace en contra de las pruebas de la ciencia y la técnica por desconocimiento.

VII- Daños y perjuicios. No se comparten los agravios al respecto, pues al no haberse comprobado por parte de este Tribunal el nexo causal que debe mediar para haber estimado la demanda, procede el rechazo de los daños y perjuicios alegados, que son la pretensión principal de un proceso de esta naturaleza.

VIII-Costas. Al no haberse condenado a la parte actora recurrente al pago de daños y perjuicios a favor de la demandada, se rechaza su agravio. Con respecto a las costas, denota esta sede que si bien no fue declarada con lugar la demanda, la parte tenia causa para litigar, pues contaba con una seria de indicios técnicos y pruebas científicas que le daban fundamento a establecer la demanda. A lo anterior se agrega que el sustrato suministrado por la parte demandada si presentaba deficiencias en sus cualidades físicas que pueden afectar la germinación de los almácigos, lo anterior se deduce de los análisis físicos de laboratorio oficial del Estado, los criterios vertidos en la prueba pericial. Por otra parte, el mismo perito manifestó que la técnica de cultivar en sustratos como el adquirido por la actora, era de reciente práctica en el país. Por ello, con fundamento en el artículo 55 de la Ley de Jurisdicción Agraria, y considerando las pruebas existentes en el caso citadas con respecto a la deficiencia del producto, se resuelve sin especial condenatoria en costas, debiendo revocarse el fallo en cuanto a dicha condena a la parte actora.

IX- Por los motivos expuestos, deberá rechazarse la prueba ofrecida para mejor resolver de recibir declaración del Ingeniero Luis Fernando Avendaño ofrecido por la actora y oficio DSFE 001.2010 ofrecido por la parte demandada, por resultar ambas probanzas innecesarias. Deberá revocarse parcialmente la sentencia en cuanto a la condenatoria en [Nombre5] y en su lugar se resuelve sin especial condenatoria en costas. En o demás objeto de apelación se confirma la sentencia.

POR TANTO :

Se rechaza la prueba ofrecida para mejor resolver. Se revoca parcialmente la sentencia apelada solamente en cuanto a la condenatoria en [Nombre5] personales y procesales a Agroverde Dos Mil S.A. En su lugar, se resuelve sin especial condenatoria en costas. En lo demás objeto de apelación se confirma la sentencia.

[Nombre17] DAMARIS VARGAS VÁSQUEZ ALEXANDRA ALVARADO PANIAGUA PROCESO ORDINARIO PROMOVENTE: AGROVERDE DOS MIL SA CONTRA: V J CENTROAMERICA SA [Nombre18] / [Nombre19] + [Nombre19] Constancia de notificación Parte u otros Resultado Fecha Servidor (a) ACTORA [Telf1] DEMANDADO [Telf2]