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CISG CASE PRESENTATION

Italy 24 August 2006 Tribunale [District Court] di Rovereto (Euroflash Impression S.a.s. v. Arconvert S.p.A.)
[Cite as: http://cisgw3.law.pace.edu/cases/060824i3.html]

Primary source(s) of information for case presentation: CISG-online.ch website

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Case identification

DATE OF DECISION: 20060824 (24 August 2006)

JURISDICTION: Italy

TRIBUNAL: Tribunale di Rovereto

JUDGE(S): Dott. Luca Perilli

CASE NUMBER/DOCKET NUMBER: 1537/05

CASE NAME: Euroflash Impression S.a.s. v. Arconvert S.p.A.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: France (defendant)

GOODS INVOLVED: [-]


Case abstract

Tribunale di Rovereto

24 August 2006

Abstract by Francesco G. Mazzotta

An Italian supplier entered into a contract with a French company, which is in the business of card board printing, manufacturing stickers, blisters and skinpacks, for the sale of certain goods. Upon receiving the goods, Buyer notified the Seller that the goods were defective. As a result, the Seller brought an action to recover the contract price.

The Court held that it lacked jurisdiction to hear the case pursuant to Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter "Regulation"). The Regulation applies to the dispute because (1) it is a civil/commercial matter, (2) the defendant is domiciled in a Member State (France) and (3) the legal proceeding commenced after March 1, 2002 (date in which the Regulation entered into force).

The court noted that the issue of determining the proper court in a dispute concerning a sale of goods had been expressly resolved by the Regulation. The Regulation, which replaced the Brussels Convention of 1968 (hereinafter the "Convention"), provides that, for the purpose of identifying the proper court, a person domiciled in a Member State may be sued in the court of the place of performance of the obligation. In the case of a sale of goods, the place of performance is the place where, under the contract, the goods were delivered or should have been delivered.

The next issue is determining the meaning of the term "delivery" under the Regulation. Given that a question of interpretation could not be submitted to the European Court of Justice by a trial court, it was the instant court, therefore, that had to decide whether the Regulation intended to use the term "delivery" as it is ordinarily used or whether the meaning of the term should be determined pursuant to domestic law or the CISG. The Court noted that (1) a substantive law convention may not be used to interpret the Regulation, being the Regulation adopted by a European Union Institution and, as such, prevailing over domestic law and international agreements, (2) there is not a substantive definition for the term "delivery of goods in a sale of goods" in EU law, (3) premise number 11 to the Regulation expressly provides for the domicile of a legal person to be defined autonomously so "as to make the common rules more transparent and avoid conflicts of jurisdiction", and (4) the place of delivery for purposes of the Regulation may differ from the place of delivery for purposes of substantive law, the court nonetheless refused to pass judgment on it as it considered the matter committed to the European Legislator and not subject to judicial review. The Court concluded that the term delivery, for the purpose of determining whether it was jurisdictionally competent, is the place where the goods become available to Buyer, which is the place where Buyer has its domicile.

The Court also rejected Seller's contention that the parties have agreed on referring to the Tribunale di Rovereto (the instant Court) to resolve any dispute arising from the contractual relationship. Specifically, Seller contends that Buyer, by accepting the terms of the sale, as outlined in the order confirmation, Buyer accepted the term whereby the Tribunale di Rovereto would have jurisdiction to hear matters related to the contract. The Court, however, held that Buyer never accepted that contractual term. Both the CISG and the Italian law require an offer and an acceptance for a contract to be concluded. In the instant case, the term dealing with the jurisdiction was not included in the offer, but merely in the acknowledgement of the order. Under both the CISG and Italian law, the term merely constituted an additional term contained in the Seller's reply, which was not accepted by the Buyer. Moreover, an acceptance of the term cannot be inferred from the mere fact that Buyer knew or should have known the term. That, without acceptance, is enough not to bind Buyer. Additionally, Seller failed to show that there was a prior practice between the parties or that the parties were bound by international usages.

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 8 ; 14 ; 19 ; 31(a) ; 55

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

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1147&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Italian): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1374.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1147&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

French: Claude Witz, Recueil Dalloz (23 October 2008) 2626-2628

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Pace Law School Institute of International Commercial Law - Last updated November 10, 2008
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