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Abstract
Date: 26.11.2002
Country: Italy
Number: 3095
Court: Tribunale di Rimini
Parties: Al Palazzo S.r.l. vs Bernardaud s.a.
Citation: http://www.unilex.info/case.cfm?id=823
An Italian restaurant purchased porcelain tableware from a French manufacturer. The parties agreed that the price would be paid in two instalments, the first at the moment of the conclusion of the contract and the second within ninety days after delivery of the goods. A few days after delivery the buyer unpacked the goods and discovered that many of the items were defective.

According to the buyer it immediately informed a sales person of the seller who promised to have the defective goods replaced but in fact the goods were never replaced. Consequently the buyer, who had already paid the first instalment, refused to pay the second instalment.

The seller claimed that it was entitled also to the full price as the buyer had not given timely notice of the defects: in fact the buyer had only given notice in a letter sent six months after delivery.

The seller obtained from the Tribunale di Rimini an injunction for payment of the second instalment, which the buyer challenged before the same Court.

In deciding the case the Court first of all stated that the contract was governed by CISG as the two parties were situated in Contracting States. Also the substantive requirements for the application of the Convention were met, i.e. that the contract was a sales contract of an international character and the parties had not excluded the application of the Convention.

With respect to the merits of the case the Court confirmed the seller’s right to be paid the full amount. Indeed the Court found that the buyer had not given notice of the defects of the goods within a reasonable time as required by Article 39(1) CISG. It is true that the “reasonable time” for notice depends on the circumstances of each case and on the nature of the goods, but in the case at hand the Court held that a notice given six months after delivery was clearly not timely. As to the buyer’s assertion that it had given oral notice to a salesperson of the seller immediately after the discovery of the defects, the Court held that the buyer had failed to produce the necessary evidence of such oral notice. While admitting that the question of the burden of proof is not expressly settled in CISG, the Court stated that the principle according to which it is up to the party asserting certain facts to prove them (“onus probandi incumbit ei qui dicit”) was one of the general principles underlying the Convention by virtue of which the gap could be filled according to Article 7(2). Other such general principles underlying the Convention where party autonomy, no requirements as to form, applicability of usages generally known and regularly observed, prohibition of venire contra factum proprium, duty to mitigate harm, full compensation of losses, limitation of damages to foreseeable losses, effectiveness of notices given after the conclusion of the contract as from the time of dispatch.

The Court relied for each issue on a number of decisions on CISG already rendered by foreign courts and arbitral tribunals. In so doing the Court declared that, though precedents in international case law cannot be considered legally binding, they have to be taken into account by judges and arbitrators in order to promote uniformity in the interpretation and application of CISG (Art. 7(1) CISG). In this respect the Court stressed the importance of existing databases and of specialised law journals as a tool for the dissemination of international case law and made an express reference to the UNILEX Database on the Internet.