Italy 3 July 2000 District Court Reggio Emilia (Industrial machinery case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/000703i3.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Unavailable
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Switzerland (defendant)
BUYER'S COUNTRY: Italy (plaintiff)
GOODS INVOLVED: Industrial Machinery
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
31A [Place for delivery: contracts involving carriage of goods]
31A [Place for delivery: contracts involving carriage of goods]
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CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=762&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (Italian): Unavailable
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English:  Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 31 para. 92Go to Case Table of Contents
Case text (English translation)
Queen Mary Case Translation Programme
Tribunale di Reggio Emilia, 3 July 2000
C.L.D.A., S.r.l. v. Muller Mecamac, SA 
Translation by Joseph Gulino [*]
Translation edited by Francesco G. Mazzota [**]
 Italian jurisdiction does not exist according to the meaning of Article 5.1 of the Brussels Convention of 27 September 1968 where the obligation to deliver the goods, determined on the basis of the Vienna Convention of 11 April 1980 (made applicable in turn by Article 3 of the Hague Convention of 15 June 1955), was performed by delivering the goods to the carrier in the United Kingdom.
 Article 6.2 of the Brussels Convention of 1968 is not applicable where the defendant does not challenge the lack of jurisdiction of the presiding judge with the intention of continuing the trial on the warranty action in front of that same judge and, thus, preventing the third party from facing its natural judge. The Italian judge does not have jurisdiction over the claim of warranty against an English company brought by a Swiss corporation when none of the criteria set forth by Articles 2 and 6.2 of the Brussels Convention of 1968 are met.
GROUNDS OF THE DECISION
 C.L.D.A. S.r.l. [hereinafter, "buyer"] acknowledged that it purchased a Farmer Norton HS400 lathe and a Dahlhaus WR4 roller-burnishing machine from Muller Mecamac SA  [hereinafter, "seller"], a Swiss corporation with offices in Geneva. The [buyer] has brought this action for damages against [seller] because of defects that became apparent at the moment said machinery was placed into action.
 The [seller], likewise, acknowledged that it acquired this machinery from M&M Greaves, with offices in Sheffield, England. The [seller] has filed a third-party complaint against M&M and has asked the Court to find it not liable for the damages requested in [buyer]'s complaint. M&M has preliminarily objected to the Italian court's jurisdiction, claiming that the Court lacks jurisdiction over the principal action [i.e., the dispute between the seller and the buyer]. M&M further contends that [buyer]'s failure to object to the Court's jurisdiction and, consequently, its acceptance of the jurisdiction and subsequent removal of M&M from its natural judge amounted to a violation of Article 6.2 of the Brussels Convention (of 27 September 1968). The English company [M&M] has also questioned the connection [of the dispute concerning the guarantee] with Italian jurisdiction, claiming that Article 6.2 does not include a secondary guarantee which occurs when the seller, who is a defendant in an action brought by the buyer complaining of defective goods, brings into litigation his supplier pursuant to an autonomous and separate contractual relationship.
 In summing up the preliminary issue of the decision, it is necessary for this Court to establish, according to the Lugano Convention, if it has jurisdiction over the principal action, which is the contractual relationship between [buyer] and [seller]. The Lugano Convention of 16 September 1988 is applicable in this situation considering the nationality of the defendant (the buyer); additionally, it is similar to the Brussels Convention in provisions and interpretation criteria.
 Excluding the recurrence of the linkage criterion that can be found in Article 2, it must be recalled, according to the criterion found in Article 5.1, that the Court of Justice of the European Communities asserted that reference be made only to the obligation in question (compare the Court's decision of 6 October 1976, in case number 15/76). The Court further specified that the place of performance of an obligation has to be determined in conformity with the law that regulates that obligation, since lex causae [applicable law] prevails over lex fori [law of the forum]. Therefore, under Italian private international law, the sales transaction between [seller] and [buyer] must be regulated (according to the explicit reservation in Article 57 of the [Italian] law 218 of 31 May 1995 ) by the Vienna Convention on Contracts for the International Sale of Goods (of 11 April 1980). The Vienna Convention was made in turn applicable according to Article 3 of the Hague Convention (of 15 September 1955). That said, it is then necessary to determine, firstly, what is the obligation at issue and, secondly, where such obligation should have been carried out according to the established criteria of the aforesaid convention.
 The [buyer] has proposed a claim for damages, based on defects in the machinery furnished by [seller]. This claim basically concerns the unsatisfactory fulfillment of the obligation of delivery by [seller]. As to the place of performance, it must be observed that where the goods sold are to be transported from one place to another, the obligation of delivery is fulfilled by handing-over the goods to the first carrier for delivery to the buyer, pursuant to Article 31(a) of the Vienna Convention, which presents a rule analogous to Article 1510 of the Italian Civil Code.
 It became apparent from the bill of freight that the goods offered into evidence by M&M were delivered to the carrier in Sheffield for transportation to Reggio Emilia, [Italy,] the location of [buyer]'s offices. The fact that the contractual duty was carried out in England is further confirmed by the expression "free on truck" found both on the bill of freight as well as on the machinery sales invoice. This expression specifies that shipping costs were to be charged to the buyer. According to what has already been set out in this decision, the English judge, as the judge of the place of execution of the obligation at issue, would have jurisdiction over the action filed by [buyer] against [seller].
 The defendant [seller] has additionally neglected to object to such circumstance, and thus accepted the Italian jurisdiction that would not have otherwise been recognized according to the criteria in Articles 2 and 5(1) of the Brussels Convention.
 If the circumstance was the result of a free choice of [seller], it also had the result of forcing M&M to bear the burden of coming before a judge different from the one competent according to international norms.
 Furthermore, [seller] has continuously shown to M&M its intention of promoting "a joint legal action with Mr. Landini," a legal representative of [buyer]. This statement is a valid factor in deducing that [seller] had not challenged jurisdiction in order to start the trial on the warranty action in front of an Italian judge. Therefore, the principal action has been proposed with the deliberate intention of removing M&M from its natural judge (compare the note of 7 February 1996 and 19 March 1996 produced under parts 3 and 4 of the third-party complaint).
 Such considerations are for themselves sufficient to exclude the validity of the Italian jurisdiction as against M&M.
 Reference must be made -- if only for rendering the grounds of this decision complete -- to the trend in cases in which the criterion of a shifting of the jurisdiction set forth by Article 6.2 of the Brussels Convention (to be integrated with the law of the forum) does not provide for the secondary guarantee according to which the seller, sued by the buyer for defects of the goods, brings in the foreign supplier itself (as a third party) on the grounds of an autonomous and separate contractual relationship.
 The position taken in this decision does not appear contradictory to the Court's decision (number 5713) of 12 June 1990 (quoted by [seller] in its final request). In that decision, the Court recognized Italian jurisdiction toward a foreign buyer -- sued in a warranty case characterized by successive sales of the same goods -- exclusively according to the criterion set forth in Article 4.3 of the Italian Code of Civil Procedure (since repealed) and left out consideration of the question concerning the nature of the warranty (normal or secondary warranty).
 In reception of the preliminary exception, the Court declares the lack of jurisdiction over the seller's proposed action against M&M. Furthermore, seller is ordered to pay M&M's trial costs, as per this decision.
 This suit shall be entered into the docket, per separate order on today's date, as the [principal] action by [buyer] against [seller] shall be continued.
 For these reasons, the First Section of the Tribunal of Reggio Emilia therefore rules:
There is a lack of jurisdiction to hear the question presented by Muller Mecamac S.A.[seller] against M&M Greaves Machinery and orders Mecamac [seller] to pay M&M's trial costs set forth in the amount of ....
Placed on the docket for the continuation of the action proposed by [buyer] against [seller], as per today's separate order.
* Joseph Gulino, student of Law and International Affairs, University of Pittsburgh School of Law, alumnus Willem C. Vis International Commercial Arbitration Moot (2003).
** Francesco G. Mazzota, LL.M. University of Pittsburgh (2000), is an Associate in the New York office of Zini & Associates and an Associate of the Institute of International Commercial Law of the Pace University School of Law.
1. [Plaintiff/buyer is an Italian company; Defendant/seller is a Swiss company. -trans.]
2. [According to Article 6.2 of the Brussels Convention, this would be the judge of the "court seized of the original proceedings," in this case the English judge, as the judge of the place of performance of the obligation. - trans.]
3. [Società a responsibilità limitata. Limited liability company. - trans.]
4. [Société Anonyme. Incorporated. - trans.]
5. [These defects are not further described in the opinion. -trans.]
6. [The court makes reference to Legge 31 maggio 1995, n. 218, Riforma del Sistema Italiano di Diritto Internazionale Privato, law 218 of 31 May 1995 concerning the reform of the Italian system of private international law. - trans.]
7. The court cites the Italian Supreme Court Case n.246 of 15 January 1987.
All translations should be verified by cross-checking against the original text.Go to Case Table of Contents