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| Abstract | ||||||||||||||||||
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| A Swiss company (buyer) placed several orders for welding devices with an Italian company (seller) through a third person who appeared to be acting on buyer’s behalf. After delivery, the seller issued the corresponding invoices but the seller refused to pay, alleging not to bound by the contract because of lack of authority by the third party. Then a dispute arose between the parties.
First of all, after confirming its jurisdiction over the case in accordance with Art. 2(1) of the 1988 Lugano Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters, the Court held that the contracts were governed by CISG as both parties had their places of business in different Contracting States (Art. 1(1)(a) CISG). As to the question whether the third party could be considered as agent of the buyer, the Court held that the matter of agency was not covered by CISG (Art. 4 CISG), with the result that it had to be settled in conformity with the otherwise applicable domestic law (i.e. Swiss law). The Court then found that the buyer, although perfectly aware that the third party used to act as its representative vis-à-vis the Italian party, had never objected to that, only requesting the third party to no longer mention its name when dealing with the Italian counterparty. Furthermore, the buyer did pay a part of the sums owed to the seller without specifying that such an amount was only a down payment on behalf of the third party and that it did not hold itself debtor to the seller. Again, the buyer allowed the third party to use its conference room and its fax, by means of which the latter had placed orders by making use of the buyer’s headed letter-paper. It followed that, since the seller had legimatevely relied upon the fact that the third person was acting as an agent of the buyer, the latter had to be deemed party to the sales contracts at issue. Moreover, the Court rejected the buyer’s argument that the seller had failed to deliver the goods. In doing so, it first of all stated that, according to the general principle underlying CISG (Art. 7(2)) that the claimant should bring evidence in favor of its cause of action, it was up to the seller to prove that delivery had actually taken place. The Court then found that the seller had demonstrated it had performed the contract either by, according to Art. 31 CISG, handing the goods over to the first carrier for trasmission to the buyer or by placing them at the buyer’s disposal in its place of business depending on the kind of goods to be delivered. However, since with respect to one of the alleged orders evidence had not been provided, the seller was denied recovery of the corresponding price. In order to determine the currency of payment, after recalling that CISG does not contain any provision thereon, the Court applied Italian law (as the law of the country in which the seller has his habitual residence at the time when he receives the order pursuant to Art. 3(1) of the 1955 The Hague Convention on The Law Applicable To International Sale Of Goods) and, therefore, awarded the seller the purchase price in Euro. The Court finally granted the seller interest on the outstanding price (Art. 78 CISG) in accordance with the Italian statutory rate. |