A French buyer concluded a contract with an Italian seller for the purchase of transformers. The goods were handed over to the carrier in Ancona/Italy and were delivered in several installments. On only one of the bills it was said that the place of delivery was La Bussière in France. The buyer paid part of the purchase price. It commenced an action against the seller alleging the non-conformity of goods. The seller alleged that the French Court did not have jurisdiction over the case. The first instance court decided in favour of the seller stating that the Italian and not the French Court had jurisdiction.
The Court of Appeal confirmed the lower Court's decision apart from the installment's bill which mentioned La Bussière as place of delivery. It applied Art. 5 (1) of the EC Convention on Jurisdiction and the Enforcement of Decisions in Civil and Commercial Matters (1968 Brussels Convention), according to which a person domiciled in a Contracting State may be sued in the Court of the place of performance of the main obligation in question, which in the case at hand was the place of delivery of the goods by the seller (Italy).
The Court of Appeal applied the CISG to determine the place of delivery of the goods. According to Art. 31 (a) CISG the obligation to deliver consists of handing over the goods to the first carrier when the contract of sale (as in the case at hand) involves carriage of the goods. Therefore, the place of delivery was Italy except for the one installment's bill which mentioned La Bussière as place of delivery. |