Date: 07.08.1998
Country: Italy
Number: 7759
Court: Corte Suprema di Cassazione, Sez. Un.
Parties: AMC di Ariotti e Giacomini S.n.c. v. Zimm & Söhne GmbH
An Italian seller and an Austrian buyer concluded a contract for the sale of women block stockings. The seller commenced an action before an Italian court to recover the unpaid balance of the contract price. The buyer objected to the jurisdiction of the Italian courts to hear the case on the ground that the parties had established a practice under which the price was to be paid in Austria. The case was deferred to the Italian Supreme Court on the issue of jurisdiction.

The Supreme Court applied Art. 57(1) CISG in order to determine the place of performance of the buyer's obligation to pay the price, since, according to the Italian Code of Civil Procedure, a foreign party may be sued before an Italian court if the obligation in question is to be performed in Italy. The court stated that Art. 57(1) CISG sets forth the general rule pursuant to which if the buyer is not bound to pay the price at any other particular place, the place of performance of the obligation to pay the price coincides with the seller's place of business or, if the payment is to be made against the handing over of the goods or of documents, with the place where the handing over takes place.

In the court's opinion, the word "bound" contained in Art. 57(1) CISG, means that the general rule of payment at the seller's place of business does not apply only if there is a specific agreement that the buyer is obliged to pay the price at a different place. A mere practice between the parties, which may well depend on a tolerance on the part of the seller, is not sufficient to justify a derogation from the general rule. This interpretation is corroborated by the use of the very same word "bound" in Art. 58(1) CISG, regarding time of payment.

In the case at hand, the existence of a specific agreement that the buyer was to pay the price in Austria was disputed between the parties and could not be ascertained by the Supreme Court. Therefore the court held that the Italian courts had jurisdiction to hear the case on the ground that the place of performance was the seller's place of business in Italy.