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| An Italian seller delivered in-line skates to a German buyer. As the buyer did not pay the purchase price after receiving delivery, the seller started a legal action to obtain payment. The buyer claimed set-off with its right to reduce the price deriving from lack of conformity of previous deliveries made by the seller and its right to restitution of part of the price already paid for them, as well as damages for violation of the distributorship agreement.
The Court applied CISG to the sales contract concluded under the distributorship agreement (Art 1(1)(a) CISG). The first instance decision was confirmed and the buyer condemned to pay the remaining purchase price (Art. 53 CISG). As to the set-off claim by the buyer, the Court denied its jurisdiction. According to Art. 5(1) of the EC Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters (Brussels 1968), a person domiciled in a contracting State (in the case at hand, the seller) may be sued in the court for the place of performance of the obligations in question (i.e. delivery of conforming goods). Therefore, since delivery was to be made by handing over the goods to the first carrier in Italy (Art. 31(a) CISG), Italian courts were competent both for the claim for reduction of price (Art. 50 CISG) and for restitution of price already paid (Art. 81(2) CISG). Further the Court awarded the seller the right to interest on the purchase price under Art. 78 CISG. The interest rate was determined according to the otherwise applicable Italian law. |