Date: 10.01.2006
Country: Italy
Number: --
Court: Tribunale di Padova - Sez. Este
Parties: Pessa Studio c. WHS Saddlers International
An Italian manufacturer and an English distributor concluded a sales contract on approval of two merry-go-rounds made and to be installed by the former in Great Britain. As neither the price was paid nor the goods returned to the manufacturer within the time provided in the contract, the seller brought an action against the buyer before an Italian Court.

The Italian Court declined jurisdiction on the ground of European Council Regulation no. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters, which had to be applied in lieu of the 1968 Brussels Convention since the claim had been brought after the Regulation's entry into force and the dispute concerned a “civil or commercial matter” as required by its Art. 1(1).

After recalling that the Regulation, contrary to the Brussels Convention, expressly provides that in the case of a sales contract the place of performance for the purposes of Article 5(1)(b)is the place in a Member State "where the goods were delivered or should have been delivered under the contract", the Court first of all pointed out that the notion of “sales contract”, which has not been defined by the Regulation, has to be interpreted autonomously. For this purpose, in view of its large consensus worldwide and its importance as a model for other instruments adopted at European level such as Directive no. 99/44 on the sale and consumer goods and associated guarantees, the Court decided to make recourse to CISG, according to which a sales contract may be defined as a contract whereby the seller is obliged to deliver the goods, transfer of the property in the goods and possibly to deliver the documents relating to the goods while the buyer is obliged to pay the price and to take delivery of the goods (see Arts. 30, 53 CISG). In the case at hand the contract was definitely to be considered a sales contract. The fact that the seller was also obliged to install the merry-go-rounds at the place of delivery was irrelevant since this latter obligation was not preponderant (Art. 3(2) CISG). Also with respect to the notion of the place of delivery under Art. 5(1)(b) of the Regulation
the Court stated that it had to be interpreted "autonomously” and that, unless otherwise agreed between the parties, in cases where the contract involves the carriage of the goods the place of delivery is to be considered the place where the seller hands the goods over to the first carrier for transmission to the buyer. In reaching this conclusion the Court referred first of all to Art. 31(a) CISG, but at the same time it pointed out that "this solution is confirmed by two other equally autonomous, though not binding, instruments such as the UNIDROIT Principles of International Commercial Contracts (Art. 6.1.6(1)) and the Principles of European Contract Law (Art. 7:101(1)(b))". In the case at hand, however, since the seller was contractually bound to install the merry-go-rounds upon delivery in Great Britain, it could not be considered to have fulfiled its obligation of delivery by having handed the goods over to the first carrier. Consequently, in the case at hand the place of delivery was not located in Italy but in Great Britain and the Italian courts had therefore no jurisdiction.