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CISG CASE PRESENTATION

Italy 9 December 2005 Tribunale [District Court] di Modena (XX Cucine S.p.A. v. Rosda Nigeria Limited)
[Cite as: http://cisgw3.law.pace.edu/cases/051209i3.html]

Primary source(s) of information for case presentation: Franco Ferrari

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Case identification

DATE OF DECISION: 20051209 (9 December 2005)

JURISDICTION: Italy

TRIBUNAL: Tribunale di Modena

JUDGE(S): Dott. Riccardo Di Pasquale

CASE NUMBER/DOCKET NUMBER: 4143/2001 R.G. A.C.

CASE NAME: XX Cucine S.p.A. v. Rosda Nigeria Limited

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Nigeria (defendant)

GOODS INVOLVED: Professional cooking equipment


Case abstract

ITALY: Modena District Court (Carpi Division) 9 December 2005

Case law on UNCITRAL texts [A/CN./SER.C/ABSTRACTS/82],
CLOUT abstract no. 842

Reproduced with permission of UNCITRAL

Abstract prepared by Liboria Maggio, and Maria Chiara Malaguti, National Correspondent

The case involved a contract between a Nigerian buyer and an Italian seller for the sale of professional cooking equipment to be used by the Nigerian Prison Service. After signing the contract, the buyer postponed payment and delivery several times, and only after several requests did it eventually lodge a deposit. Soon thereafter it failed to pay the outstanding invoices or to take any steps to receive delivery. As a consequence, the seller retained the deposit and informed the buyer of the termination of the contract. It then sued the buyer for non-performance at Modena District Court, also claiming damages in compensation.

The Court affirmed its jurisdiction by virtue of Italian Law No. 218/1995, 31 May 1995, which refers to the 1968 Brussels Convention on jurisdiction and the enforcement of judgements in civil and commercial matters (hereinafter the Brussels Convention). Because of the renvoi of Law No. 218/1995, the criteria of the Brussels Convention were considered applicable by the Court, although Nigeria is not a contracting member. According to the Brussels Convention, the courts of the place of performance of the obligation in question have jurisdiction over the case. The place of performance is to be determined according to the rules of private international law. In this case, the rules of private international law pointed to the application of Italian law and hence CISG (art. 1(1)(b)).

The Court also referred to CISG article 57, which states: "If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) at the seller's place of business." In the case in question, the seller's main office was located in Italy, thus the Italian judge had jurisdiction to hear the case.

The Court stated the buyer's obligation to pay the price, according to CISG articles 53 and 58, as a condition for the delivery of the goods. It also acknowledged the additional period of time for performance fixed by the seller, pursuant to CISG article 63. Based on the analysis of evidence, the Court held that the buyer was non-performing, since it had not executed due payment and that the seller had the right to terminate the contract.

However, in this particular case, the seller had not only declared avoidance of the contract but had also retained the deposit paid by the buyer. This issue required identification of the applicable law, since CISG was not applicable. The Court thus referred to CISG article 7, which states that questions concerning matters governed by the Convention, which are not expressly settled in it should be settled in conformity with the general principles on which the Convention is based or, in their absence, in conformity with the law applicable by virtue of international private law rules. Pursuant to these latter, the Court resorted to article 4 of the Rome Convention, according to which a contract is governed by the law of the country with which it is most closely connected. In this case, Italy was the country most closely connected to the contract and Italian domestic law was the applicable law. The Court, referring to previous Italian case law by the Supreme Court, held that the seller had the right to retain the deposit.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7(2) ; 57

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Italian): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1398.pdf>; excerpt published in Rivista di diritto internazionale privato e processuale, 2/2007, pp. 387-391

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated March 19, 2009
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