|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| An Italian seller and a French buyer concluded a contract for the sale of textiles to be used in manufacturing covers for bags of a prestigious high fashion company.
Due to complaints by the high fashion company that the covers were defective, the buyer sued the seller before a French Court, requesting appointment of an expert to ascertain liability on the part of the seller. Pending the suit before the French Court, the Italian seller sued the French buyer in Italy claiming that the latter had lost its right to rely on Art. 1495 of the Italian Civil Code since notice of lack of conformity was untimely and, in any case, the relevant limitation period had expired. The buyer objected, inter alia, that the jurisdiction was vested in Italian Courts. The Italian Court of first instance found that it had jurisdiction over the case and this conclusion was confirmed both by the Court of Appeal and the Italian Supreme Court. In reaching such a conclusion, the Italian Supreme Court rejected the buyer’s argument that Art. 31(a) CISG, according to which, if the seller is not bound to deliver the goods at any other particular place and the contract involves carriage of goods, “its obligation to deliver consists in handing the goods over to the first carrier for transmission to the buyer”,can be applied only when a specific indication of the place for delivery is lacking. In the Court’s view, such an interpretation would imply admitting that in a contract for the sale of goods involving carriage of goods the place for delivery can be omitted and, consequently, that lit. a of Art. 31 CISG is a supplementary rule. On the contrary, commercial practices existing both at the time of the conclusion of the Convention and nowadays show that in a sale contract involving carriage of goods the final destination of the goods is always fixed by the parties. Therefore, the rule set out in Art. 31 (a) CISG does not intend to fill a possible gap in contracts but, given that final destination of the goods is always agreed upon by the parties, it aims at clarifying that the seller’s obligation to deliver, unless provided otherwise by contract, is deemed performed by transmission of the goods to the first carrier. Consequently, the fact that in the case at hand the final destination of the goods was in France was of no relevance. Instead, since the place where the goods had been handed over to the first carrier was in Italy and no other place had been agreed upon by the parties, Italian Courts had to be considered as having jurisdiction over the case. |