- Tribunale di Modena - sez. Carpi
- XX Cucine s.p.a. v. Rosda Nigeria Limited
JURISDICTION – 1968 BRUSSELS CONVENTION – JURISDICTION OF COURT FOR PLACE OF PAYMENT OF PRICE – SELLER’S PLACE OF BUSINESS (ART.57(1)(A)CISG)
RIGHT TO RETAIN GUARANTEE DEPOSIT- MATTER IMPLICITLY EXCLUDED FOR CISG (ART.4)- DOMESTIC LAW APPLICABLE
An Italian seller and a Nigerian buyer concluded a contract for the sale of professional cooking equipment. After contract conclusion, the buyer started postponing both payment and date for delivery. Following several requests by the seller, the buyer eventually made an advance payment by way of guarantee deposit, but failed to pay the outstanding price amount. As the parties were unable to settle the dispute amicably, the seller sued the buyer claiming termination of contract plus damages.
First of all, the Italian Court affirmed its jurisdiction over the case. In reaching such a conclusion, the Court applied Art. 5(1) of the 1968 Brussels Convention, which states that a person domiciled in a contracting State may be sued in the Court of the place of performance for the contractual obligation in dispute (i.e. place of payment). In order to determine the place of payment, the Court applied Art. 57(1)(a) CISG, since the relevant rules of private international law led to the application of Italian law and Italy is a CISG contracting State (Art. 1(1)(b) CISG). According to Art. 57(1) CISG, the place of payment was the seller’s place of business in Italy.
Secondly, the Court observed that, although CISG was the law applicable to the merits of the dispute, the case at hand raised a question that was not resolved by the Convention, i.e. whether the seller was entitled to retain down payment by way of guarantee deposit. Referring to Art. 7(2) CISG, the Court had recourse to Italian domestic law to resolve the question (art. 7(2) CISG), and decided in favor of the seller.
Published in Italian (excerpt):
- Rivista di diritto internazionale privato e processuale, 2/2007, pp. 387-391.}}