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| An Italian seller and a Spanish buyer concluded a contract for the sale of goods. A dispute arose and the seller sued the buyer before an Italian Court claiming for price and interest. The buyer objected to the jurisdiction of the Italian Court, arguing that the Spanish Courts were competent over the case.
After recalling that European Council Regulation no. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter: the Regulation), contrary to the 1968 Brussels Convention, expressly provides that in case of a sales contract the place of performance is the place in a Member State "where the goods were delivered or should have been delivered under the contract" (Art. 5(1)(b)), the Court found that the Regulation has not introduced an "autonomous" notion of place of delivery. Nonetheless, such a notion is not to be construed by reference to provisions or criteria of national law. Instead, in view of its importance as a model for Directive no. 99/44 on the Sale of Consumer Goods and Associated Guarantees, the Court found it appropriate to have recourse to CISG, and in particular to Art. 31(a) CISG, according to which, in the case of a sales contract involving carriage of the goods, “if the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists in handing the goods over to the first carrier for transmission to the buyer”. In the Court's view, regard had to be given also to the Principles of European Contract Law, and in particular to Art. 7:101, which states that “if the place of performance of a contractual obligation is not fixed by or determinable from the contract, in the case of an obligation other than to pay money it shall be performed at the debtor’s place of business at the time of conclusion of the contract”, as such Principles, though not binding, intend to embody the new European "lex mercatoria", to be used as an aid for developing uniform interpretation of law at domestic level and creating legal instruments in the field of the law of contracts. Consequently, since both those international instruments provide that, in the absence of a provision to the contrary, the place for performance in a sales contract is the place where the seller has its place of business, it followed that jurisdiction over the case was vested in Italian Courts. In fact, in the case at hand the place where the seller had handed the goods over to the first carrier for transmission to the buyer was in Italy and no other place for delivery had been agreed upon by the parties. |