Go to Database Directory || Go to CISG Table of Contents|| Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Italy 24 November 1989 Court of First Instance Parma (Foliopack v. Daniplast) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/891124i3.html]

Primary source(s) for case presentation: Case text


Case Table of Contents


Case identification

DATE OF DECISION: 19891124 (24 November 1989)

JURISDICTION: Italy

TRIBUNAL: Pretura circondariale [Court of First Instance] di Parma, sez. di Fidenza

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 77/89

CASE NAME: Foliopack AG v. Daniplast S.p.A.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Switzerland (defendant)

BUYER'S COUNTRY: Italy (plaintiff)

GOODS INVOLVED: Knapsacks, bags, wallets


Case abstract

ITALY: Pretura circondariale di Parma 24 November 1989

Case law on UNCITRAL texts (CLOUT) abstract no. 90

Reproduced with permission from UNCITRAL

The plaintiff, a Swiss buyer, placed an order with the defendant, an Italian seller. The order contained a request that the goods be delivered within the following 10 to 15 days. Almost two months later, the seller, after asking the buyer to confirm its order, specified the purchase price and assured the buyer that all the goods would be dispatched within a week. Two months later, the buyer had not yet received the goods. As a consequence, the buyer sent the seller a notice canceling the order and requiring refund of the price. The seller admitted that it had handed over the goods to the carrier only after receiving the notice of cancellation from the buyer, and that, moreover, the delivery was partial. The buyer refused to accept the late and partial delivery and, as the seller did not refund the purchase price, commenced legal action claiming avoidance of the contract for breach by the seller. The buyer also claimed a refund of the purchase price with interest and damages.

The court found that according to the statements and conduct of the parties the contract was to be considered concluded at the time the order was confirmed, and that the seller was bound to dispatch all the goods within the following week. It was held that the delay by the seller in delivering the goods, together with the fact that two months after the conclusion of the contract the seller had delivered only one third of the goods sold, amounted to a fundamental breach of the contract according to article 49(1)(a) CISG.

The court held that the buyer was entitled to avoid the contract and to recover the full purchase price already paid to the seller. Without referring to CISG, the court awarded the buyer interest on the price to be refunded at the Italian statutory interest rate. Contrary to what is provided in article 84(1) CISG with regard to time of accrual of interest, the court held that interest was payable from the date of avoidance of the contract. The court did not grant any further damages as there was no evidence of any further damage suffered by the buyer.

Go to Case Table of Contents

Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 25 ; 49(1)(a) ; 78 ; 84(1) [Also cited: Article 51 ] [Also relevant: Article 48 ]

Classification of issues using UNCITRAL classification code numbers:

25A1 [Effect of a fundamental breach: avoidance of contract];

49A1 [Buyer's right to avoid contract (grounds for avoidance): fundamental breach of contract];

78A [Interest on delay in receiving price or any other sum in arrears];

84A [Restitution of benefits received: seller bound to refund price must pay interest]

Descriptors: Fundamental breach ; Avoidance ; Interest

Go to Case Table of Contents

Editorial remarks

Go to Case Table of Contents


Citations to other abstracts, case text and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=62&step=Abstract>

French: Revue de Droit des Affaires Internationales (1995) 1009-1010 [CLOUT abstract]

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER) / Revue suisse de droit international et de droit européen 1996, 49

Italian: Diritto del Commercio Internazionale 1995, 441-442 No. 56

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 254-255

CITATIONS TO TEXT OF DECISION

Original language (Italian): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=62&step=FullText>; see also <http://soi.cnr.it/~crdcs/crdcs/it241189f.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Avoidance commentaries. Koch, Pace Review of Convention on Contracts for International Sale of Goods (1998) 251 n.246 [fundamental breach (uncertainty as to seller's future performance)]; Honnold, Uniform Law for International Sales (1999) 212 [Art. 25 (standards for avoidance)]; Boghossian, Pace Review of the Convention on Contracts for the International Sale of Goods (1999-2000) n.n.480, 485; for analysis of the remedy of avoidance citing this and other cases, go to Kazimierska, Pace Review of the Convention on Contracts for the International Sale of Goods (1999-2000) n.130. Interest commentaries [each commenting on this case and other cases]. Behr, 17 Journal of Law & Commerce (1998) 263 [269-270]; Koneru, 6 Minnesota Journal of Global Trade (1997) 123-138; Thiele, 2 Vindobono Journal (1998) 3-35 [n.63, n.89]; Graffi, Case Law on the Concept of "Fundamental Breach" in the Vienna Sales Convention, Revue de droit des affaires internationales / International Business Law Journal, No. 3 (2003) 338-349 at nn.56, 86; Liu Chengwei, Recovery of interest (November 2003) n.122; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.808; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 49 para. 17; Spaic, Analysis of Fundamental Breach under the CISG (December 2006) nn.273, 330

German: Schlechtriem, Internationales UN-Kaufrecht (1996) 69 n.19

Go to Case Table of Contents

Case text (English translation)

Queen Mary Case Translation Programme

Pretura circondariale di Parma 24 November 1989
Foliopack AG v. Daniplast S.p.A.

Translation by Hanz G. Chiappetta [*]

Translation edited by Angela Maria Romito [**]

[...]

The course of trial

By summons and complaint served on 13 March 1989, Foliopack AG [buyer], located in Widen, Switzerland, commenced an action before this Court against Daniplast S.p.A. [seller], located in Fidenza, Italy, stating that, on 8 February 1988 [buyer] ordered from [seller] more than 500 pieces of [seller's] new line of products called "Air Bubble" (bags, knapsacks and plastic-wallets). [Buyer] expressly asked to have the goods delivered within 10-15 days. By communications sent during the following weeks, the [buyer] emphasized the importance of a quick delivery.

In addition, [buyer] alleges that, after a few phone calls about quality, colors, payment conditions and after the [seller] requested the [buyer] to reorder the goods - on 4 April 1988, [seller] sent a communication by which he specified the price of the goods and assured the shipment before the end of the following week. [Buyer] sent a further a communication stating that a check for ITŁ [Italian lira] 3,936,690, the price for all of the goods, had been sent on 5 April 1988. [Buyer] also asked that the goods be shipped as soon as possible.

On 30 May 1988, considering that the [buyer] had requested the delivery of the goods many times and they had not yet been delivered, [buyer] sent a communication by which [buyer] renounced the purchase of the goods and asked the [seller] to return the check in the amount of ITŁ 3,936,690, a check which in the meanwhile had already been cashed by the [seller].

On 6 June 1988, [seller] replied that the goods had already been delivered.

The day after, the [buyer] asked for an explanation. The [seller] said that he had delivered part of the goods to the carrier on 1 June 1988. Since the [seller] did not return the [buyer's] money, the [buyer] started this action asking to have the contract cancelled [avoided] due to the [seller's] behavior and consequent fault. The [buyer] asked the Court to require [seller] to refund the ITŁ 3,936,690 [buyer] had paid plus interest and currency devaluation, and to pay damages. [Buyer] also asked for the costs of trial expenses and that the Court's judgment be immediately enforceable.

In his answer, [seller] alleged that the contract had been signed on 1 April 1988 and that he would have performed upon two conditions:

-    First, since [seller's] first attempt to cash the [buyer's] check was unsuccessful, before sending the goods he wanted to be sure that he would have been able to have the money.
-    Moreover, second, he wanted to know the name of the carrier and the name of the person in charge to get the goods at the place of destination.

These conditions were satisfied at the end of May 1988. Consequently, on 1 June 1988 the [seller] handed over the goods to the carrier Danzas, which has its main office in Parma.

Moreover, in his answer the [seller] explained that the contract should not be cancelled [avoided] because the [buyer's] demand for cancellation [avoidance] was implicitly withdrawn by the [buyer] by the letter [buyer] sent to the [seller] on 1 June 1988.

The [seller] offered to pay only ITŁ 1,128,987. [Seller] asked also for the costs of his trial expenses and for rejection of [buyer's] demands.

Decision

First of all, referring to the time of performance of both obligations, the Court considers the time limit by which the [seller] should have sent the goods to the [buyer] of fundamental importance. This can also be deduced from the correspondence between the parties before the signing of the contract. The constant element in all of the negotiations was that [buyer] explicitly stated that it was essential for [buyer] to have the goods as soon as possible after the (signing) conclusion of the contract […]. The fact that the [seller] was aware of this can be deduced from his communications to the [buyer] in which he stated his capability to deliver all of the goods within a period of time.

Nevertheless, two months after signing the contract, [seller] still had not performed his obligation to deliver the goods to the [buyer]. This is also proved by the fact that, since the goods still had not been sent on 30 May 1988, [buyer] sent a telex in which [buyer] stated that, due to the non-performance by the seller, [buyer] expressly relinquished the goods and asked the [seller] to return the money already paid.

After this communication, on 1 June 1988 the [seller] falsely replied that he had already sent the goods. The evidence that the [seller's] communication of 1 June 1988 was not true (was false) is also provided by the following telex sent by [seller] on 2 June 1988 in which, in reply to the peremptory demands by the [buyer] for an explanation, the [seller] stated that he had handed over the goods to the carrier on 1 June 1988, and only a part of them.

Moreover, the justifications alleged by the [seller] […] are not persuasive; they cannot excuse his behavior. First of all, in the correspondence between the parties there is no reference to these points; second, referring to the payment of the agreed amount by the [buyer] to the [seller], it has been proved that the [seller] was able to cash the [buyer's] check thirty days before the partial delivery of the goods. This was proved by the fact that the sum paid by the [buyer] was credited to the [seller's] account on 4 April 1988.

The telex sent by the [buyer] on 1 June 1988 confirms that which [buyer] has stated above; it does not say the contrary. In the opinion of the Court, this written communication was not a withdrawal of that which the [buyer] stated in [buyer's] telex of 30 March.

Once [buyer] received the [seller's] telex of 1 June 1988 (n. 171), the [buyer] legitimately and rightly did not give credit to its contents and asked the [seller] for further explanations. These were given by the telex of 2 June, and explicitly repudiated the previous telex sent the day before.

Even if this Court did not consider the time limit the parties attached to the contract of fundamental importance, it would be clear that the [seller] did not perform the obligations he undertook pursuant to this contact; this is a good reason to justify the cancellation [avoidance] of the contract for [fundamental] breach of contract, as requested by the [buyer].

We focus our attention on the [seller's] partial performance (see art. 1455 Italian Civil Code). The [seller's] non-performance is a fundamental breach of contract according to article 49(1)(a) of Law n.765/1995 [Law n. 765/1995 is the law approving the CISG as the domestic law of Italy] by virtue of either:

-    [Seller's] unreasonable delay in delivering the goods; or
-    Because two months after the conclusion of the contract, the [seller] was not yet able to deliver one-third of the goods.

The [seller] not only delivered the goods two months after he signed the contract, but he was also unable to send one-third of the goods ordered by the [buyer]. […]

This Court declares the 1 April 1988 contract between the parties cancelled [avoided].

The Court directs the [seller] to return to the [buyer] the sum of ITŁ 3,963,960 plus legal interest and devaluation from 30 May until the date of the payment. The Court, however, rejects the [buyer's] request for damages and for immediate enforceability because [buyer] did not prove any of the material elements of these claims.

The [seller] will pay the trial expenses.

[…]


FOOTNOTES

* Hans G. Chiappetta received a J.D. from the University of Milan School of Law; an LL.M. in Comparative Legal Studies and a Certificate of Concentration in International Law from the Pace University School of Law (White Plains, NY).

** 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.

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

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated March 20, 2007
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents|| Go to Case Search Form || Go to Bibliography