CISG CASE PRESENTATION

Italy 19 November 1992 Constitutional Court (F.A.S. Italiana - Ti.Emme - Pres.Cons.Ministri (Avv.gen.Stato)) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/921119i3.html]

• Case identification
• UNCITRAL abstract
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)
• Guide to links contained in case presentations

Case abstract

ITALY: Corte Constituzionale 19 November 1992

Case law on UNCITRAL texts (CLOUT) abstract no. 91

Reproduced with permission from UNCITRAL

Before the Italian Constitutional Court the argument was made that Article 1510 para. 2 of the Italian Civil Code, stating that the seller performs its obligation to deliver the goods by handing them over to the carrier and thereby implicitly placing the risk for the carriage on the buyer, was inconsistent with the principle of equality provided for by article 1228 of the Italian Civil Code the carrier should be considered as the agent of the seller, who would be liable for the agent's acts.

The Constitutional Court rejected the argument, inter alia, on the ground that Article 1510 para. 2 of the Italian Civil Code reflected a rule generally accepted at international level and in this respect express reference was made to Articles 31 and 67 CISG.

Classification of issues present

APPLICATION OF CISG: No [cited simply to support conclusion that a domestic law conforms to generally accepted international practice]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 31(a) ; 67(1)

Classification of issues using UNCITRAL classification code numbers:

31A1 [Place for delivery (contracts involving carriage of goods): obligation to hand goods to first carrier];

67A [Risk when contract involves carriage of goods: risk passes on handing goods over to first carrier]

Descriptors: Carriage of goods ; Delivery ; Passage of risk

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=58&step=Abstract>; see also <http://soi.cnr.it/~crdcs/crdcs/it191192a.htm>

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

Italian: Diritto del Commercio Internazionale 1995, 446 No. 62

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

Original language (Italian): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=58&step=FullText>; see also <http://soi.cnr.it/~crdcs/crdcs/it191192.htm>; Foro italiano (1992-I) 3201- 3202; Giurisprudenza costituzionale (1992) 4191-4194; Giustizia civile (1994) 314

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

French: Witz, Les premières applications jurisprudentielles du droit uniforme de la vente internationale (L.G.D.J., Paris: 1995), 18 n.12

German: Kaiser, Recht der Internationalen Wirtschaft (RIW) 1994, 71

Case text (English translation)

Queen Mary Case Translation Programme

PARTIES: F.S. Italiana S.n.c.[*] - Ti Emme S.n.c. - President of the Council of Ministers. (State Attorney-General)

CONSIDERED IN FACT

[...]

CONSIDERED IN LAW

1. The Pretore of Turin (Judge of First Instance) doubts the constitutional legitimacy of Art. 1510(2) of the Civil code (Cc), part of which provides that the seller is released from his obligation of delivery by returning the goods to the carrier or to the forwarder; consequently, the seller bears no liability for [any] loss or average of the goods. Only the carrier (or the forwarder) [is liable] according to the rules and the limits [of law] provided for the contract of transportation.

The issue of constitutional legitimacy was raised with respect to Art. 3 of the Constitution (Cost.) on the basis that in the [case of] sale with carriage [of goods], the liability of the seller, who has the obligation to deliver to the buyer the goods sold, is governed in an unreasonably different way compared to the liability of the [buyer] debtor, who in carrying out his duties avails of third parties’ performances and of whose fraudulent acts or without malice aforethought acts the [debtor] is answerable.

[...]

2. The issue is not founded.

In the case of sale with carriage [of goods], the transfer of risk to the buyer, upon the delivery of the goods to the carrier, is provided by a rule [Art. 1510(1) Cc] which is applied only in the absence of either a contrary usage or of a different agreement between the parties. [This rule] is in conformity with the general provision [Art. 1182(2) Cc], which is also supplemental, and in respect of which the judge a quo [Pretore] did not have any doubt of its constitutional legitimacy. According to [art. 1510(1) Cc], the delivery of goods is due at the place where the above is found at time of the sale or rather at the seller’s domicile or place of business (Art. 1510(1) Cc; but see also Art. 1182(2) Cc). Therefore, it is reasonable to consider the transport of the purchased goods made on behalf of, thus at the risk of, the buyer. The latter may also indicate to which carrier or forwarder the goods must be returned.

Furthermore, it is clear that it was not properly plead for, as element of comparison of the rule that the remitting judge [a quo] hypothesizes unreasonably different, the principle of the debtor's [buyer's] liability, who in carrying out his duties avails of third parties’ performances (Art. 1228 Cc), if one considers that the returning of the goods to the carrier already fulfils the seller's obligation of delivery. This latter principle is in force in the legal systems of other countries with legal traditions close to ours. Also, it finds a clear legislative expression in any systems where sales contracts have, instead, only duties with obligatory effects (§ 447 of the German Civil Code), and not with real effects as is the case in the Italian legal framework provided by the Cc. The transfer of risk from the seller to the buyer upon the delivery of the goods to the carrier responds also to a principle, previously affirmed in Art. 19 of the Convention on the Uniform Laws on the International Sale of Moveable Goods [ULIS] (adopted in The Hague 1 July 1964 and ratified with the L. 21 June 1971, n. 816), which has been confirmed by the articles 31 and 67 of the United Nations Convention on Contracts for the International Sale of Goods (adopted in Vienna 11 April 1980, ratified with the L. 11 December 1985, n. 765, which entered into force on 1 January 1988).

[...]

FOR THESE REASONS

The Constitutional Court

Declares not founded the issue of constitutional legitimacy of Art 1510(2) Cc, with respect to Arts. 3 and 41 Cost., raised by the Pretore of Turin with the ordinance issued 11 March 1992.

FOOTNOTES

* All translations should be verified by cross-checking against the original text. Translator's note on abbreviations: Cc = Codice civile [Italian Civil Code of 1942]; Cost. = Costituzione Italiana [Italian Constitution of 1948]; L. = Italian ordinary law, enacted by the Parliament; S.n.c. = Società in nome colletivo [Partnership – see for a comparison with US Law, Uniform Partnership Act UPA-].

** Anoosha Boralessa LLB (London School of Economics); LLM; Member of New York Bar. She was awarded a scholarship by the Dante Alighieri Institute to study in Florence and has worked as a legal consultant in Milan. She is currently working in London and is a candidate for a diploma in International Commercial Arbitration at Queen Mary, University of London.

*** Giovanna Micheli, Giovanna Micheli is a member of the MAA and a LL.M. in Admiralty, Tulane University School of Law (2002). She earned Certificates in Int’l Commercial Arbitration and Domestic Law and Practice of Arbitration. She is also admitted in Italy as Attorney.