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CISG CASE PRESENTATION

Italy 18 October 2002 Corte di Cassazione [Supreme Court] (Janssen Cosmeceutical Care GmbH v. Munda Alberto)
[Cite as: http://cisgw3.law.pace.edu/cases/021018i3.html]

Primary source(s) of information for case presentation: UNCITRAL abstract

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Case identification

DATE OF DECISION: 20021016 (18 October 2002)

JURISDICTION: Italy

TRIBUNAL: Corte di Cassazione, Sezioni Unite

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 14837/02

CASE NAME: Janssen Cosmeceutical Care GmbH v. Munda Alberto

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (defendant)

BUYER'S COUNTRY: Italy (plaintiff)

GOODS INVOLVED: Cosmetics


Case abstract

ITALY Corte di Cassazione 18 October 2002

Case law on UNCITRAL texts (CLOUT) abstract no. 648

Produced with permission of UNCITRAL

Abstract prepared by Maria Chiara Malaguti, National Correspondent, and Rocco Palma

An Italian distributor and a German manufacturer entered into an agreement whereby the distributor was to purchase and distribute in Italy a certain quantity of cosmetics. Shortly after the German company had started delivery of the goods, the Italian distributor contested to the counterpart that the goods were delivered late, in quantities different from those ordered and without the packaging and advertising materials agreed in the contract. The distributor brought suit before an Italian Court claiming breach of contract and damages, on the ground that, according to art. 5(1) of the 1968 Brussels Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters, a person domiciled in a contracting State may be sued in the court of another contracting State where the obligation has been or is to be performed. The German manufacturer objected to the jurisdiction of the Italian judge and referred the case to the Italian Supreme Court to obtain a preliminary decision on the matter.

The Supreme Court found that jurisdiction was vested in German courts since article 5(1) of the Brussels Convention was not applicable to the dispute. In reaching this conclusion, the Court stated that the contract was governed by CISG as the two parties had their place of business in two Contracting States (art. 1(1)(a) CISG) and the substantive requirements for the application of the Convention were met, i.e. the contract for the supply of goods to be manufactured or produced was to be considered a sale contract (art. 3(1) CISG). Then, in order to determine the place of performance and whether the Italian judge had jurisdiction, the Court resorted to art. 31(a) CISG, according to which, when a sale involves carriage of goods, unless otherwise provided by the parties, the place of performance is to be considered the place where the goods are handed over to the first carrier. In the case at hands, a contractual clause provided for the delivery of the goods "FOB". Consequently, under both the CISG and the terms of contract, Germany was to be considered the place of performance.

The Court further noted that the uniform law provided by the CISG prevails over the 1980 Rome Convention on the Law Applicable to Contractual Obligations by virtue of art. 7(2) of the former and art. 21 of the latter and renders of no avail the domestic rules of private international law.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 3(1) ; 7(2) ; 31(a)

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Italian): Iurisdata (database); excerpt in Giustizia civile, Massimario (2002) 1826

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated March 2, 2007
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