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CISG CASE PRESENTATION

Italy 3 January 2007 Corte Suprema di Cassazione [Supreme Court] (Bourjois S.A.S. v. Gommatex Poliuretani S.p.A.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070103i3.html]

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

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Case identification

DATE OF DECISION: 20070103 (3 January 2007)

JURISDICTION: Italy

TRIBUNAL: Corte Suprema di Cassazione

JUDGE(S): Dott. Vincenzo Carbone (Presidente Aggiunto), Dott. Paolo Vittoria (Presidente di sezione); Consiglieres: Dotts. Roberto Michele Triola, Giulio Graziadei, Francesco Trifone, Guido Vidiri, Mario Cicala, Salvatore Salvago, Alfonso Amatucci

CASE NUMBER/DOCKET NUMBER: R.G.N. 20436/04

CASE NAME: Bourjois S.A.S. v. Gommatex Poliuretani S.p.A.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: France (defendant)

GOODS INVOLVED: Textiles


Case abstract

ITALY: Supreme Court of Cassation (Civil Division) 3 January 2007

Case law on UNCITRAL texts [A/CN./SER.C/ABSTRACTS/82],
CLOUT abstract no. 841

Reproduced with permission of UNCITRAL

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

An Italian seller and a French buyer entered into a contract for the sale of coloured synthetic fabrics to be used by the buyer for the manufacture of bags. The final products, however, were seriously defective and the buyer sued the seller before the French Court of Nanterre. The buyer obtained an expert judgement that declared the products defective, verified the responsibilities of the seller and determined the amount of damages.

Ten years after this decision, the seller sued the buyer before the Italian Court of Prato in order to obtain limitation of action as far as a warranty on the products was concerned. In response, the buyer claimed that the Italian judge lacked jurisdiction, since the place of delivery of the goods was in France, as established by the contract.

The Italian Court of Prato declared its jurisdiction and later on the Italian Court of Appeal of Florence confirmed the decision of the Court of Prato. Both Courts affirmed the Italian jurisdiction by virtue of CISG article 31, which states: "If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: (a) if the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer." In accordance with this article, the delivery had to be considered as having been carried out in Italy.

The buyer appealed to the Italian Supreme Court, which also dismissed the appeal. The Court's opinion was again based on CISG article 31 (a). The Court dismissed the seller's argument that CISG article 31 (a) applied only if the contract did not indicate any place of delivery. If this interpretation were to be accepted, it would imply that contracts of international sales of goods involving carriage of the goods did not require the indication of the place of delivery of the goods. As a result, CISG article 31 (a) would end up being a default rule. In current and past commercial practice, however, the place of delivery was always determined by the parties and article 31 (a) simply made it clear that the seller's obligation to deliver the goods was always fulfilled by handing the goods over to the first carrier, if the contract did not provide otherwise. Since, in the case in question, the first carrier was based in Italy, the relevant obligation was thus performed in Italy.

The Court added that in the case of international sales involving transportation of goods, European Council Regulation (EC) No. 44/2001 provided that the place of delivery was where the goods were transmitted to the carrier. In the case in question, that place was in Italy; Italian jurisdiction was therefore also applicable, pursuant to EC Regulation No. 44/2001.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 31

Classification of issues using UNCITRAL classification code numbers:

31A [Place for delivery: contracts involving carriage of goods]

Descriptors: Delivery ; Jurisdiction

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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=1164&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Italian): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1415.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1164&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

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

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Case text (English translation) [first draft]

Queen Mary Case Translation Programme

Corte suprema di cassazione (supreme court) bourjois s.a.s. V. Gommatex poliuretani s.p.a.

3 January 2007

Translation [*] by Giacomo Marchisio [**]

1. Facts and history of the proceedings

Between 1987 and 1989, Gommatex Poliuretani s.p.a. [hereinafter Seller] – an Italian company headquartered in Prato – sold to Bourjois s.a.s. [ hereinafter Buyer] – a French company headquartered in Neuilly Sur Seine – colored synthetic fabrics, which were used by [Buyer] for the manufacturing of the lining of Chanel handbags.

Chanel, subsequently to the delivery of the goods, complained of the defective quality of the fabrics. According to these complaints, the handbags would remain attached to one another because of the gluey surface of the fabrics. Moreover, when detaching them, the handbags would significantly lose their dye.

Consequently, [Buyer] sought before the Tribunal of Nanterre, an interim measure for appointing an expert in charge of determining the defection of the goods and [Seller]’s liability. However, during the pending of the proceedings before the French tribunal, on January 29, 1997, [Seller] brought suit against [Buyer] before the Tribunal of Prato, requesting it to find that [Buyer]’s right to rely on a lack of conformity had expired under article 1495 of the Italian Civil Code. The [Buyer]filed a preliminary objection contesting the jurisdiction of the Italian Tribunal, which however was firmly rejected by the court.

The judgment was then appealed by [Buyer] before the Appeal Court of Florence on grounds of lack of jurisdiction. The appeal was rejected on October 29, 2003 for the following reasons:

a)  Pursuant to article 31, let. a) CISG, if the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: (a) if the contract of sale involves carriage of the goods—in handing the goods over to the first carrier for transmission to the buyer;

b)  In the case at hand, from the evidence gathered, the sale implied carriage of the goods, which were in fact delivered to the first carrier in Prato;

c)  The fact that the parties had agreed to have the goods delivered in a warehouse in France was irrelevant, since the clause exclusively referred to the final place of delivery of the goods, and did not affect the legal determination of the place of delivery;

d)  Italy being the place of delivery, the court shall uphold the jurisdiction of the Tribunal of Prato, pursuant to article 5.1 of the Brussels Convention.

The judgment has now been appealed before the Court of Cassation.

2. Reasons for Judgment

The appellant, [Buyer], appeals the judgment of the Court of Florence on the exclusive ground of lack of jurisdiction, and raises the following arguments:

a)  The court has erroneously applied Article 31, let. a) CISG by interpreting it in light of Italian law, thus adopting an inadequate approach given the international character of the Convention. On the contrary, the proper interpretation should have been guided by the particular purposes of the CISG, particularly with regard to its inner rationale aimed to give relevance to the will of the parties, which is implemented in the case at hand in the possibility of derogating to the principle enacted in Article 1510.2 of the Italian civil code [“in the absence of a different contractual term or usage, the supplier is relieved from the obligation to deliver the goods after delivery to the first carrier or shipping agent].

b)  Therefore, the court has disregarded the agreement of the parties, which indicated as place of delivery [Buyer]’s warehouse in France. This circumstance, in light of the cases of special jurisdiction enucleated in Article 5.1 of the Brussels Convention, would be not suitable for grounding the Italian jurisdiction over the dispute.

These arguments shall be rejected.

The [Buyer] argues that Article 31 let. a) CISG shall be interpreted as a subsidiary rule, which would apply only in the absence of a specific provision of the contract designating a place of delivery.

This argument must be rejected, since it presupposes that in the context of the international sale of goods, it may occur that the place of delivery has not been indicated by the parties. However, the contractual practices assumed for the implementation of the aforementioned provision were, and still are, highly different from this assumption. In fact, the place of delivery is, on the contrary, always dealt with by the contract, since a lack of agreement on this matter is virtually unconceivable.

Therefore, Article 31 let. a) CISG is not meant to fill contractual gaps, but rather to establish a mere exemption of liability after the Seller’s delivery to the first carrier, given that the place of delivery has already been fixed by the parties. Furthermore, the analogy of this provision with article 1510.2 of the Italian civil code may under no circumstances amount to an indicia of parochial interpretations of the CISG.

As for the second argument, i.e. interpreting Article 31 let. a) CISG in light of Article 5.1 let. b) of the Council Regulation 44/2001 [this reference is more appropriate than the one to the Brussels Convention], which is indisputably not applicable to the case at hand, this Court finds that it is not possible to infer that the place of delivery should be considered as the place where the material and final delivery of the goods shall take place. This conclusion is dictated by Article 63.1 of the Regulation, which states that a person domiciled in the territory of the Grand Duchy of Luxembourg and sued in the court of another Member State pursuant to Article 5(1) may refuse to submit to the jurisdiction of that court if the final place of delivery of the goods or provision of the services is in Luxembourg. Therefore in any other case of international sale of goods requiring carriage, the place of delivery shall be the one where the first supplier has received the goods.

3. For these reasons:

The appeal is dismissed;

The [Buyer] shall bear the legal costs of the proceedings;

Rome, December 7, 2006.


FOOTNOTES

* All translations should be verified by cross-checking against the original text.

** Giacomo Marchisio, Grande Stevens - Studio Legale Associato; Coach of the Torino team - Willem Vis Moot Court; Member of the Young International Arbitration Group (YIAG) - London Court of International Arbitration (LCIA).

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Pace Law School Institute of International Commercial Law - Last updated August 9, 2012
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