Italy 29 January 2009 Tribunale di Bolzano [District Court] [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/090129i3.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Unavailable
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy
BUYER'S COUNTRY: Netherlands
GOODS INVOLVED: [-]
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
39 [Requirement to Notify Seller of Lack of Conformity: Sanctions]; 74 [Damages - General Rules for Measuring]; 79 [Impediment Excusing Party from Damages]
39 [Requirement to Notify Seller of Lack of Conformity: Sanctions];
74 [Damages - General Rules for Measuring];
79 [Impediment Excusing Party from Damages]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Italian): Unavailable
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [first draft]
Queen Mary Case Translation Programme
Translation [*] by Giacomo Marchisio [**]
Facts and History of the Proceedings
On May 5, 2005, [Seller], made a successful application for a payment injunction [n. 1063/2005] amounting to 29.210 euro, against the [Buyer].
On May 7, 2005, [Buyer] appealed the injunction on several grounds.
The first ground referred to the lack of jurisdiction of the Italian courts, the second ground concerned [Seller]'s lack of entitlement to the payment, the third ground was related to an alleged miscalculation of the amount of the payment, whereas the two final grounds referred to the lack of conformity of the contracted goods and the non-recoverability of the payment. Moreover, [Buyer] filed a counterclaim seeking compensation for the damages resulting from the alleged lack of conformity.
On October 24, 2005, [Seller] filed an answer to [Buyer]'s application for appeal, requesting this Court to dismiss the challenge to the jurisdiction. With respect to the merits, [Seller] declared to renounce 15,250 euro of the amount claimed [receipt n. 512, August 29, 2003], and further objected that [Buyer] failed to notify the lack of conformity pursuant to article 39 cisg and article 1495 of the Italian Civil Code.
The parties requested the court to issue a partial judgment, exclusively addressing the challenge to the jurisdiction. On September 20, 2006, the Court ruled [judgment n.1014/2006] on the preliminary challenge, by confirming the jurisdiction over the dispute. Consequently, the court authorized the parties to file their written submissions with respect to the merits of the case. At the hearing on October 9, 2008, the parties made their final submissions and proceeded with the discussion.
The judge upheld the reasoning of the decision.
Reasons for Judgment
|1)||Since the first written submission, [Seller] has declared to renounce 15,250 euro of the amount claimed. Thus, the sum now being claimed equals to 13.690 euro.
|2)||[Seller] objects that [Buyer] failed to notify the lack of conformity of the goods pursuant to article 39 cisg. Alternatively, [Buyer] may no longer rely on the warranty against defects of the contracted goods, since it failed to notify [Seller] within the period of time set forth by article 1495(1) of the Italian Civil Code. [Seller] further alleges that in any event, the claim has expired pursuant to article 1495(3) of the Italian Civil Code.
These objections shall be rejected. With respect to the lack of conformity, the evidence gathered shows that the notification occurred by phone and mail in June or July 2003. Pursuant to article 39(1) cisg, the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. With regard to the reasonable time (sometimes defined as a 'general clause'), the [Italian] courts have held that it shall be determined on a case by case basis, thus by taking into consideration the circumstances of the case, and the nature of the contracted goods. For instance, the reasonable time for a notification referring to perishable goods is shorter than the one related to nonperishable goods. In the case at hand the parties contracted for the sale of industrial machines, and therefore the reasonable time period shall not be interpreted narrowly.
This court is of the opinion that in this case, the four months period preceding the notification is a reasonable period of time.
Furthermore, the objection related to the application of article 1495(3) of the Italian Civil Code shall be also rejected. The fact that the cisg does not provide a fixed period of time may not be considered as a lacuna, that could be solved by resorting to Private International Law, and thus, in the case at hand, to the Italian civil code. In any event in fact, the two years period indicated in article 39(2) cisg, leading to the impossibility to rely on a lack of conformity is incompatible, and shall therefore prevail, with the shorter one year period fixed by article 1495(3) of the Italian Civil Code.
|3)||As far as the merits are concerned, it is undisputed that the goods have been delivered, and that [Buyer] has notified the lack of conformity of such goods. Yet, the actual existence of the lack of conformity has not been proven. On this matter, [Seller] has correctly argued that [Buyer] failed to provide the court with any document or picture, demonstrating the defects of the goods. Neither has it shown any sample of the broken or defective parts, nor has it requested the appointment of an expert ex officio in order to have the goods inspected. At the same time, [Buyer] failed to prove that the reparations made by the sister company EcO2, were linked to the contracted goods. In any event [Buyer] also failed to prove the existence of damages caused by [Seller]. Therefore, the request for damages shall be rejected.
Finally, the court is requested to determine which one of the parties bears the burden of proving the existence of the defects of the goods. As it has been correctly held by the Tribunal of Vigevano [judgment of the 7th of July 2000], the principle that shall be followed in such cases is the following: ei incumbit probation qui dicit, non qui negat (the proof lies upon him who affirms, not upon him who denies). This conclusion is supported by article 79 cisg which - by placing on the party in breach the burden of proving that the failure to perform was due to an impediment beyond his control- implicitly recognizes that in the opposite case, the burden of proving the opposing party's breach (i.e. delivering goods in conformity with the contract) lies on the beneficiary of the performance (in this case the buyer). The corollary of the above principle, as authoritatively noted by several foreign tribunals, is that exceptions shall be proven by the party that invokes them [HG Zurich, November 30, 1998]. With respect to the non conformity of the goods, the above general principle – similarly to Italian and German law – places on the buyer the burden of proving the defects of the goods and the resulting damages [HG Zurich, November 30, 1998; HG Zurich, April 26, 1995; OLG Innsbruck, July 1, 1994].
Therefore, in light of the aforementioned principle this court comes to the conclusion that [Buyer]'s claim shall be rejected.
|4)||Considering that [Buyer]'s requests are ungrounded, and that [Seller] has renounced - only for the purposes of the present appeal – to claim 15,250 euro [receipt n. 512, August 29, 2003], the petitum is thus reduced, and [Buyer] is ordered to pay 13,960 euro. Pursuant to article 74 cisg and following, [Buyer] shall also pay the interests.|
For these reasons
The appeal is sustained and the payment injunction is revoked.
[Buyer] is ordered to pay seventy-five per cent of the legal costs of the proceedings.
* 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).Go to Case Table of Contents