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CISG CASE PRESENTATION

Italy 26 November 2002 District Court Rimini (Al Palazzo S.r.l. v. Bernardaud di Limoges S.A.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/021126i3.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20021126 (26 November 2002)

JURISDICTION: Italy

TRIBUNAL: Tribunale [District Court] di Rimini

JUDGE(S): Francesco Cortesi

CASE NUMBER/DOCKET NUMBER: 3095

CASE NAME: Al Palazzo S.r.l v. Bernardaud di Limoges S.A.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Italy (defendant)

GOODS INVOLVED: Porcelain tableware


Case abstract

ITALY: Tribunale di Rimini 26 Novembre 2002
(Al Palazzo S.r.l. v. Bernardaud S.A.)

Case law on UNCITRAL texts (CLOUT) abstract no. 608

Reproduced with permission of UNCITRAL

Abstract prepared by Cristina Poncibò

An Italian innkeeper purchased porcelain tableware from a French manufacturer. The parties agreed that the price would be paid in two instalments, the first at the time of the conclusion of the contract and the second ninety days after the delivery of the goods. However, the second payment did not take place and the seller sued the buyer to recover the money.

In court the buyer alleged that, a few days after taking possession of the goods, it was discovered that several items were defective. The buyer also alleged that it immediately informed of the discovery a sales representative of the seller who agreed to replace the defective goods, but never did. Consequently, the buyer stated his right to set off the second payment against the value of the damaged goods. The seller replied denying that an oral notice had taken place, and that the buyer's notice had been given untimely since it was given with a letter sent only six months after taking possession of the goods.

The court first discussed some aspects relating to private international law. It noted that the relevant Italian rules for determining the law applicable to contracts for the international sale of goods were set forth by the Hague Convention on the Law Applicable to International Sales of Goods, 1955. It added, however, that, when available, uniform substantive rules should prevail over private international law rules. It noted that the direct application of uniform substantive rules would avoid the double-step approach of identifying applicable law and applying it, typical of private international law rules. The court concluded that CISG rules were more specific because they directly addressed substantive issues, and that therefore CISG rules should prevail over rules of private international law.

Moreover, the court added that the direct application of uniform substantive law might have an additional advantage over private international law in preventing forum shopping, in particular when, as in the case of the CISG, case law from different jurisdictions is easily available and therefore a uniform interpretation may develop. The court noted that foreign precedents, though not legally binding, have a persuasive value and should be taken into account by judges and arbitrators in order to promote uniformity in the interpretation and application of the CISG as requested by its article 7(1).

On the scope of application of the Convention, the court stated that the CISG governed the contract as the two parties were located in contracting States and the substantive requirements for the application of the Convention were met, i.e., the contract was a sales contract of an international nature and the parties did not exclude the application of the Convention.

In the merits, the court found that the buyer did not give notice of the defects of the goods within a reasonable time as required by article 39 (1) CISG. It stated that, even if the "reasonable time" for notices varied on the circumstances of each case and on the nature of the goods, a notice given six months after taking possession of the goods, as in the case, was clearly not timely.

While acknowledging that the matters relating to the burden of proof were not expressly settled in the CISG, the court stated that the principle that a party asserting certain facts should bear the burden of proving them was a general principle underlying the Convention for the purposes of article 7 (2) CISG. The court therefore rejected the buyer's assertion that it gave oral notice to a sales representative of the seller immediately after the discovery of the defects, as the buyer failed to produce the necessary evidence of such oral notice, and decided the case in favour of the seller.

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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 4 ; 7(1) and (2) ; 38 ; 39(1) [Also cited: Articles 1 ; 9 ; 30 ; 35 ; 40 ; 44 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

4A [Scope of Convention (general principles): party which wants to derive beneficial legal consequences from a legal provision has to prove the existence of the factual prerequisites of the provision];

7B1 ; 7C22 [Materials for interpretation: international case law; Recourse to general principles on which Convention is based];

38A [Buyer's obligation to examine goods];

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]

Descriptors: Interpretation of Convention ; General Principles ; Scope of Convention ; Burden of proof ; Examination of goods ; Lack of conformity notice, timeliness

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Italian): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Sales Law and the Inevitability of Forum Shopping: A Comment on Tribunale di Rimini, 8 Vindobona Journal of International Commercial Law and Arbitration (2004-1) 1-22; also in 23 Journal of Law and Commerce (2004) 169; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 181; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 1 para. 27 Art. 7 para. 30

Italian: Graffi, Spunti in tema di vendita internazionale e forum shopping [Remarks on international sales law and forum shopping], Diritto del commercio internazionale (2003) 807-828; Franco Ferrari, Vendita internazionale tra forum shopping e diritto internazionale privato: brevi note in occasione di una sentenza esemplare relativa alla Convenzione delle Nazioni Unite del 1980, Giurisprudenza Italiana, I: 896, 2003.

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Case text (English translation)

Queen Mary Case Translation Programme

Tribunale di Rimini 26 November 2002
Al Palazzo S.r.l. v. Bernardaud di Limoges S.A.

Translation [*] by Angela Maria Romito [**]

Translation edited by Francesco G. Mazzotta [***]

INTRODUCTION

Key CISG issues addressed: Articles 7(1) and (2), 38, 39(1). Other CISG provisions cited and commented upon: Articles 1, 9, 30, 35, 40, 44, 53. CISG cases cited: thirty-seven cases.

TRANSLATED TEXT OF CASE

PROCEDURAL HISTORY

[Buyer], by complaint duly and timely served upon [seller[, filed an action in response to summary judgment no. 1015/00 entered by the Tribunal of Rimini against the [buyer] and in favor of the [seller] on 22 September 2000, in the amount of 39,833 French francs or its equivalent in Italian liras through 1 January 1999, with interest thereon. The judgment was for residual payment on a contract of sale of porcelain plates to be used by the [buyer] for its restaurant.

In opposition to the judgment:

The [buyer] asked for a reversal of the judgment for payment, and for reduction of the price of sale in an amount corresponding to the value of the non-defective goods.

The [seller] asked the Court to reject the [buyer]’s allegations for the following reasons:

Referring to the defects of the goods:

[Seller] asked the Court to reject [buyer]’s opposition to the judgment for payment. [Seller] requested that the judgment for payment be affirmed and that [buyer] be directed to pay the second installment.

[...]

REASONING

[Determination of the applicable substantive law]

1.   The case involves a supply of goods by a [seller], whose place of business is located in France, to a [buyer], whose place of business is located in Italy. The relationship between the parties therefore has an international character. The first issue to address is the applicable substantive law.

At first glance, the applicable law has to be determined on the basis of the rules of private international law ( of the forum) dealing with international sales. As affirmed by the Supreme Court in a recent and authoritative opinion(see Cass. Civ. Sez. Un., 19 June 2000, n. 448, in Corr. giur., 2002, 369 ss.), in Italy, the applicable law must be determined by the Hague Convention of 15 June 1955 (ratified in Italy by Law dated 4 February 1958, n. 50, entered into force on 1 September 1964), not by the Rome Convention 1980 on the Law Applicable to Contractual Obligations (ratified by Law dated 18 December 1984, n. 975, entered into force 1 April 1991 (see also Tribunale [District Court] Vigevano [Italy], 12 July 2000, n. 405, in Giur. it., 2001, 281 [English translation available at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; and Tribunale [District Court] Pavia [Italy], 29 December 1999, n. 468, in Corr. giur., 2000, 932 [English translation available at <http://cisgw3.law.pace.edu/cases/991229i3.html>]). This conclusion is grounded on the conviction that the rules of private international law constitute the most appropriate source (and this is their purpose) for identification of the substantive law applicable to similar cases.

2.   However, this Court observes that the approach based on the application of substantive rules is preferable to the application of rules of international private law. It is therefore necessary to determine whether the case at bar falls within the scope of the United Nations Convention 1980 on Contracts for the International Sale of Goods (CISG) (ratified by Law dated 11 December 1985, n. 765, entered into force 1 January 1988).

Preference for the CISG (as a substantive uniform law convention) in comparison to the private international law Hague Convention 1955 (see also Tribunale Vigevano, 405/2000, cited and Tribunale Pavia, 468/99, cited) is due to the fact that application of the CISG is special compared to the application of the Hague Convention, the former being more specific [(than the latter)].

It has also been pointed out by some scholars that the application of substantive uniform law has an additional advantage compared to the application of the rules of private international law: the avoidance of forum shopping, an activity which aims at reaching the most favorable jurisdiction for the interests of the litigating parties. Forum shopping would be avoided by the application of the same substantive law in different Contracting States. On the other hand, it may be that this is only a theoretical advantage, given that even when applying the CISG, the parties still could have an interest in forum shopping, by using the domestic procedural system which is more suitable to them. The truth is that the choice of the most favorable jurisdiction would likely depend on other factors ranging from the rules of evidence to the varying conditions of efficiency and rapidity of the judicial process, the language of the proceedings, the reputation for impartiality of the Court; the enforceability of the judgment; and, above all, the fact that conventions may be interpreted differently in each country with the possibility of inconsistent results being reached on substantive issues.

Nevertheless, this Court observes that this risk appears to be rather remote with reference to the CISG, which applies to this case. It is well known that there are many worthwhile publications that help to reduce interpretative differences, namely, data bases that collect and edit international case law (see, for example, <http://www.unilex.info>) and law reviews that specialize in international sales law (such as Internationales Handelsrecht).

In furtherance of the objectives of Art. 7(1) CISG, these publications aim at assuring uniform application and interpretation of the CISG through reference to the case law of different countries. The goal of uniformity can be advanced even if the court decisions and arbitral awards of other countries, which should be taken in consideration by judges, have only persuasive and not binding value.

For opinions that cite foreign decisions, see Tribunale Vigevano, cited; Tribunale Pavia, cited; see also: Usinor Industeel v. Leeco Steel Products Inc. [U.S. District Court, Illinois], <http://cisgw3.law.pace.edu/cases/020328u1.html>; Rechtbank [District Court] van Koophandel Hasselt [Belgium], 6 March 2002, <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2002-03-06s.htm> [case presentation also available at <http://cisgw3.law.pace.edu/cases/020306b1.html>]; Oberster Gerichtshof [Supreme Court, Austria], 13 April 2000, <http://www.cisg.at/2_10000w.htm> [case presentation also available at <http://cisgw3.law.pace.edu/cases/000413a3.html>]; Cour d’appel [Appellate Court] Grenoble [France], 23 October 1996, <http://witz.jura.uni-sb.de/CISG/decisions/231096v.htm> [English translation available at <http://cisgw3.law.pace.edu/cases/961023f1.html>]; Tribunale [District Court] Cuneo [Italy], 31 January 1996, <http://www.unilex.info> [English translation available at <http://cisgw3.law.pace.edu/cases/960131i3.html>].

3.   In light of these considerations and referring to the application of the CISG, it must be observed that several requirements must be met.

     3.1 First, there must be a contract for the sale of goods.

Although the Convention does not provide any clear definition of "a contract for the sale of goods," a definition can be derived from Articles 30 and 53 of the CISG (see also Tribunal Cantonal [Appellate Court] Vaud [Switzerland], 11 March 1996, n. 01 93 1061, available at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=302&step=FullText> [English translation available at <http://cisgw3.law.pace.edu/cases/960311s2.html>]).   

According to these Articles, a contract for the sale of goods is a contract pursuant to which the seller is bound to deliver goods, transfer the property in the goods and, if applicable, hand over any documents relating to the goods, while the buyer is obliged to pay for the goods. In the present case, there is no doubt that the contract at issue is a contract for the sale of goods as contemplated by the CISG.

The Convention also requires that the object of the sale, at the moment of delivery (on this issue see Cour d’appel [Appellate Court] de Grenoble [France], 26 April 1995, on <http://witz.jura.uni-sb.de/CISG/decisions/2604952.htm> [case presentation available at <http://cisgw3.law.pace.edu/cases/950426f1.html>]), be moveable and tangible, as underscored by both an Italian Court decision (Tribunale Pavia, cited) and a foreign court decision  (see Oberlandesgericht [Appellate Court] Köln [Germany], 26 August 1994, in Neue Juristische Wochenschrift Rechtsprechungs-Report, 1995, 246 [English translation available at <http://cisgw3.law.pace.edu/cases/940826g1.html>]). It appears evident that the object of the contract in dispute also satisfies this requirement.   

     3.2 Furthermore, the application of CISG calls for the international character of the contract.

A contract for the sale of the goods is international when, at the time the contract was entered into, the parties have their relevant places of business, or the places from which the parties’ business activities are carried out, in different States. This requires a certain duration and stability as well as a certain amount of autonomy (for that definition, see Oberlandesgericht [Appellate Court] Stuttgart [Germany], 28 February 2000, in Internationales Handelsrecht, 2000, 66 [English translation available at <http://cisgw3.law.pace.edu/cases/000228g1.html>]). In the present case, it is clear that this element of internationality exists. The [seller] has its place of business in France, the [buyer] in Italy. And this internationality was well known by the parties at the time the contract was entered into; consequently, this element cannot be considered irrelevant  by virtue of Art. 1(2) CISG.

Even so, that international character of the contract by itself is not sufficient to warrant the application of the Convention (see Tribunale Vigevano, cited). It is also necessary that the countries in which the parties have their place of business are Contracting States to the CISG at the time the contract was entered into [Art.1(1)(a)], or that the rules of private international law lead to the application of the law of a Contracting State [Art.1(1)(b)]. In the present case, the CISG has been in force in both France and in Italy since 1 January 1988, long before the conclusion of the contract. Therefore CISG is applicable by virtue of Art.1(1)(a). Moreover, the parties did not exclude its application either expressly or implicitly, notwithstanding the fact they had this option, as often stated by the Italian and foreign case law (see, for instance, Oberster Gerichtshof [Supreme Court, Austria], 22 October 2001, <http://www.cisg.at/1_7701g.htm> [English translation available at <http://cisgw3.law.pace.edu/cases/011022a4.html>]; Cour de Cassation [Supreme Court, France], 26 June 2001, <http://witz.jura.uni-sb.de/CISG/decisions/2606012v.htm> [case presentation available at <http://cisgw3.law.pace.edu/cases/010626f2.html>]; Tribunale Vigevano, cited; Oberlandesgericht [Appellate Court] München [Germany], 9 July 1997, in International Legal Forum, 1997, 159 [English translation available at <http://cisgw3.law.pace.edu/cases/970709g2.html>]).

These considerations lead to the conclusion that the CISG applies to the present dispute.

[Seller’s claim]

4.   The next step is to ascertain whether the [seller]’s claim is well grounded.

The [buyer], does not contest either the existence of the right of seller to be paid, or the amount to be paid (in any event, it is shown in the records). Instead, the [buyer] complains about the delivery of defective goods.

[Issues associated with:

The [seller] alleges that the [buyer] lost the right to rely on the lack of conformity of the goods by failing to give notice within a reasonable time.

The Court observes that the rules on defective goods are provided for in Art. 35 et seq. of the CISG. In particular, Art. 35 states that seller must deliver goods which are of quantity, quality and description required by the buyer, and which are contained or packaged in the manner required by the contract. Goods are defective:

-     If they are unfit for the purpose for which goods of the same description would ordinarily be used;
-     If they are unfit for any particular purpose for which the buyer made known to seller;
-     If the goods do not possess the qualities of the goods that the seller has held out to the buyer as sample or model; or
-     If the goods are not contained or packaged in the manner usual for such goods or where there is no such manner, in a manner adequate to preserve and protect them.

If the goods are defective, in order not to lose the right to rely on the lack of conformity, the buyer must notify the seller of the defects, specifying, as much as possible, the nature of the lack of conformity, within a "reasonable time" after the moment when he has discovered the defects, or ought to have discovered them [Art. 39(1)]. According to prevailing court opinion, "reasonable time" is a "general concept" (see Tribunale Vigevano, cited; Pretura [District Court] Torino [Italy], 30 January 1997, <http://www.unilex.info/case.cfm?Pid=1&do=case&id=274&step=FullText> [English translation available at <http://cisgw3.law.pace.edu/cases/970130i3.html>]) that requires the judge to evaluate all the circumstances of the case at bar (cf. Tribunale Cuneo, 31 January 1996, cited).

The time when a lack of conformity can be discovered can be determined by virtue of Art. 38 CISG, which states that "the buyer must examine the goods or cause them to be examined within as short a period as is practicable in the circumstances."   

It is evident that there is a close connection between Art. 38 and Art. 39 CISG (as underscored by foreign case law (see Oberlandesgericht [District Court] Düsseldorf [Germany], 10 February 1994, in Recht der internationalen Wirtschaft, 1995, 53 [English translation available at <http://cisgw3.law.pace.edu/cases/940210g1.html>]). The duties of inspection and timely notice are both buyer’s obligations.

The close link between Articles 38 and 39 does not, however, lead to the conclusion that to recover for defective goods, the buyer must previously inspect them. In fact, as correctly pointed out by scholars, lack of inspection by the buyer does not necessarily involve the loss of the right to rely on the lack of conformity of the goods, as long as the defects are notified (to the seller) in a timely manner, i.e., before a "reasonable period" of time has elapsed.

In the present case, in order to ascertain whether the [buyer] has lost the right to rely on the lack of conformity of the goods, it is necessary to consider the running of both the Article 38 inspection requirement and the Article 39 notice requirement.

Since the sales contract involved the carriage of the goods, Art. 38(2) applies, by virtue of which the examination of the goods may be (but does not have to be) deferred up to the moment of arrival at destination (see also Tribunale Vigevano, [cited]). The goal of this provision is to give the buyer the opportunity to carefully inspect the goods. However, once the goods reach their destination, they must be inspected in the shortest possible time.

In this case, the goods arrived at their destination on 13 October 1999. This is proved, in spite of different allegations of the [buyer], by the consignment note duly undersigned on which the date has been recorded (see. doc. 1 seller’s file).

Therefore, the aforementioned   "as short a period of time as practicable" period runs from this date. The above-mentioned period, along with the period within which the buyer must give notice of non-conformity, comprises the "reasonable time" that Art. 39(1), requires in order to exercise buyer’s rights. It is therefore necessary to ascertain when this term began to run and if it had expired.

The parties could have reached an agreement on this issue; it is known that Art. 39(1) is a provision that can be derogated by the parties (see Tribunale Vigevano, cited; Landgericht [District Court] Gießen [Germany], 5 July 1994, in Neue Juristische Wochenschrift Rechtsprechungs-Report, 1995, 438 [case presentation available at <http://cisgw3.law.pace.edu/cases/940705g1.html>]).

However, where, as here, the term for the notice has not been agreed by the parties, the Court must take into consideration the circumstances of the case (see Tribunale Vigevano, cited; Tribunale Cuneo, cited; Oberlandesgericht [Appellate Court] München [Germany], 8 February 1995, at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=117&step=FullText> [case presentation available at <http://cisgw3.law.pace.edu/cases/950208g2.html>]; Oberlandesgericht [Appellate Court] Düsseldorf [Germany], 10 February 1994, in Recht der internationalen Wirtschaft, 1995, 53 [English translation available at <http://cisgw3.law.pace.edu/cases/940210g1.html>]; Oberlandesgericht [Appellate Court] Düsseldorf [Germany], 12 March 1993, in Diritto del commercio internazionale, 1997, 723 [case presentation available at <http://cisgw3.law.pace.edu/cases/930312g1.html>]), looking at (among other elements) particularly, the nature of the goods and the object of the contract of sale, as often affirmed by Italian and foreign case law (see Tribunale Vigevano, cited; Pretura [District Court] Torino [Italy], 30 January 1997, in Giur. it., 1998, 982 [English translation available at<http://cisgw3.law.pace.edu/cases/970130i3.html>]; Amtsgericht [Lower Court] Augsburg [Germany], 29 January 1996, <http://www.jura.uni-freiburg.de/ipr1/cisg/urteile/text/172.htm> [case presentation available at <http://cisgw3.law.pace.edu/cases/960129g1.html>]).

If the goods are perishable, the reasonable time within which buyer must give notice of non-conformity is shorter than for non-perishable goods (see Oberlandesgericht [Appellate Court] Saarbrücken [Germany], 3 June 1998, in Transportrecht-Internationales Handelsrecht, 1999, 41 [English translation available at <http://cisgw3.law.pace.edu/cases/980603g1.html>]; Rechtbank [District Court] Zwolle [Netherlands], 5 March 1997, in Nederlands Internationaal Privaatrecht, 1997, no. 230 [case presentation available at <http://cisgw3.law.pace.edu/cases/970305n1.html>]; Amtsgericht [Lower Court] Kehl [Germany], 6 October 1995, in Neue Juristische Wochenschrift Rechtsprechungs-Report, 1996, 565 [English translation available at <http://cisgw3.law.pace.edu/cases/951006g1.html>]). The same principle applies to seasonal goods (Oberster Gerichtshof [Supreme Court, Austria], 27 August 1999, in Österreichische Zeitschrift für Rechtsvergleichung, 2000, 31 [English translation available at <http://cisgw3.law.pace.edu/cases/990827a3.html>]).

In addition, to determine whether a notice is timely, pursuant to Art. 9 CISG, the Court must consider usages (see Rechtbank [District Court] Zwolle [Netherlands], 5 March 1997, in Nederlands Internationaal Privaatrecht, 1997, no. 230 [case presentation available at <http://cisgw3.law.pace.edu/cases/970305n1.html>]; Rechtbank [District Court] van Koophandel Kortrijk [Belgium], 16 December 1996, <http://www.law.kuleuven.ac.be/int/tradelaw/WK/1996-12-16.htm> [case presentation available at <http://cisgw3.law.pace.edu/cases/961216b1.html>]), as well as practices established between the parties (see Hungarian Arbitration award VB/94131 of 5 December 1995, <http://www.jura.uni-freiburg.de/ipr1/cisg/urteile/text/163.htm> [English translation available at <http://cisgw3.law.pace.edu/cases/951205h1.html>] ).

In the present case, lacking any agreement concerning the time of notice, Art. 38 and Art. 39(1) must be invoked to fill the gaps. Given that the goods in this matter are not perishable, the concept of a reasonable time does not have to be considered in an excessively restrictive way.

The records of the procedure show the material evidence that [buyer] sent notice to the [seller] complaining about defective goods by letter (attached by the [buyer] in its file) dated 13 April 2000.

It is therefore demonstrated that the notice of lack of conformity was given six months after the delivery of the goods. Considering this long period of time, it does not seem that the notice was timely.

The [buyer] could have previously inspected a sample of the goods that were sold; according to the consistent case law, that would have constituted diligent behavior (see, for instance, Oberlandesgericht [Appellate Court] Thüringer [Germany], 26 May 1998, in Transportrecht-Internationales Handelsrecht, 2000, 25 [English translation available at <http://cisgw3.law.pace.edu/cases/980526g1.html>]; Obergericht [Appellate Court] Kanton Luzern [Switzerland], 8 January 1997, in Schweizerische Zeitschrift für internationales und europäisches Recht, 1997, 132 [English translation available at <http://cisgw3.law.pace.edu/cases/970108s1.html>]).

In fact an immediate or prompt examination (rather than two months after delivery) would have probably allowed immediate discovery of the complained defects. Hence, the buyer was negligent in its obligation to examine the goods by virtue of Art. 38 CISG; as a consequence, hearing the testimony of a third witness who attended the late inspection, is irrelevant.

Furthermore, the six-month term appears indeed much too extended, both objectively and subjectively -- with reference to the nature of the goods and to their use.

In light of these considerations, the notice of lack of conformity given by the [buyer] was late; the objection of the [seller] is sustained.

It must be added that the buyer declared in its defensive briefs that it gave notice (under Art. 39 CISG) on December 1999. However, that declaration was not proved; the examined witnesses were not able to testify to any direct knowledge of this.

Since the [buyer] did not prove a December 1999 notice, [buyer]’s claim to this effect is rejected. [Buyer]’s later notice of defective goods was too late with consequent loss of the right to any remedy for the lack of conformity.

The CISG has provisions aimed at mitigating the harsh consequences of untimely notice, such as Articles 40 and 44 that allow a buyer, in certain instances, to claim a lack of conformity even in the absence of proper notice. However, these provisions are inapplicable to the present case, in that although it was his burden, [buyer] failed to establish that the [seller] knew about the defects of the delivered goods or that [seller] could not have been unaware of them (Art. 40). Similarly, [buyer] did not establish any other elements that could reasonably have excused the late notice (Art. 44).

5.   [...] [Buyer]’s opposition to the order of payment is dismissed; the decree of payment is confirmed with all consequent effects.

The costs of the procedure are charged against the losing party.

Rimini, 11 November 2002
The Judge

Dott. Francesco Cortesi


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Bernardaud di Limoges S.A. of France is referred to as [seller]; Al Palazzo S.r.l of Italy is referred to as [buyer].

** Angela Maria Romito, Associate of the Institute of International Commercial Law, Pace University School of Law. Law degree (cum laude) 1994, University of Bari, Bari, Italy. Admitted to the Bar 1997. LL.M. University of Pittsburgh School of Law 2000-2001. CWES Scholarship. Researcher of European Union Law at the University of Bari. Lawyer at Studio Legale Romito.

*** Francesco G. Mazzotta, 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.

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