An Italian seller and a Swedish buyer concluded in February 1988 a contract for the sale of 1,000 metric tons of metal (ferrochrome). The seller did not deliver the goods. The seller claimed avoidance of the contract for hardship ('eccessiva onerosità sopravvenuta') since the price of the goods had increased between the time of the conclusion of the contract and the time fixed for delivering by approximately 30%.
The court held that CISG could not have applied by virtue of Art. 1(1)(a) CISG, since at the time of conclusion of the contract the Convention had only entered into force in Italy and not in Sweden. The court also excluded the applicability of the Convention by virtue of Art. 1(1)(b) CISG, notwithstanding the fact that the parties had chosen Italian law as the law governing their contract. According to the court Art. 1(1)(b) CISG operates only in the absence of a choice of the applicable law by the parties.
In the court's opinion, even if CISG had applied, the seller could not have relied on hardship as a ground for avoidance, as CISG does not contemplate this as a remedy either in Art. 79 or elsewhere. A domestic court could not integrate into CISG provisions of domestic law granting avoidance for hardship, as hardship is not a matter which is expressly excluded from the scope of the Convention by Art. 4 CISG. |