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CISG CASE PRESENTATION

Italy 9 June 1995 Supreme Court (Alfred Dunhill v. Tivoli) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/950609i3.html]

Primary source(s) for case presentation: Case text


Case Table of Contents


Case identification

DATE OF DECISION: 19950609 (9 June 1995)

JURISDICTION: Italy

TRIBUNAL: Corte di Cassazione [Supreme Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 6499

CASE NAME: Alfred Dunhill Ltd v. Tivoli Group S.r.l.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: United Kingdom (defendant)

GOODS INVOLVED: Leather goods


Classification of issues present

APPLICATION OF CISG: Court concluded: Unnecessary to decide; result the same whether transaction a sale or a lease

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 57 [Also cited: Article 3 ]

Classification of issues using UNCITRAL classification code numbers:

57A [Place for payment: in absence of agreement, payment at seller's place of business]

Descriptors: Payment, place of ; Jurisdiction

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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=170&step=Abstract>; see also <http://soi.cnr.it/~crdcs/crdcs/it090695a.htm>

Italian: Diritto del Commercio Internazionale (1996) 652 No. 124

CITATIONS TO TEXT OF DECISION

Original language (Italian): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=170&step=FullText>; see also <http://soi.cnr.it/~crdcs/crdcs/it090695f.htm>; Glustizia Civile (1996) 2065-2070; Foro Padano, I (1997) 2-10

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 3 para. 3

Italian: Mari, [1997] Foro Padano I, 10-26

Spanish: Castellanos, Autonomia de la voluntad y derecho uniforme en la compraventa internacional, thesis, Carlos III de Madrid (1998) 88

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Case text (English translation)

Queen Mary Case Translation Programme

Corte di Cassazione, Sezioni Unite
9 June 1995, n. 6499

Alfred Dunhill Ltd. v. Tivoli Group S.r.l.

Translation [*] by Irina Dukic [**]

Translation edited by Giovanna Micheli [***]

Development of the proceedings

1. Plaintiff Tivoli Group S.r.l. [Seller], with headquarters in Rome, sued before the Tribunale of Rome (Circuit Court of First Instance) Defendant, Alfred Dunhill Ltd. [Buyer], headquartered in London. [Seller] served a summons and complaint on 1 September 1993 seeking rescission for breach of contract and presenting several demands for damages.

[Seller] explained that since 1984, it had received global output and supply orders from [Buyer] for leather articles containing [Seller]'s trademark. From 1990, the development of the relationship between the two companies was characterized by the fact that, two or three times a year, [Buyer] would submit a global prospective order for a specified period of time, followed by individual orders that completely filled the global order. This way, consistent deliveries could be performed over short terms.

[Seller] further explained that on 7 July 1992 [Buyer] sent to [Seller] a global prospective output order for 164,000 pieces [of leather articles] for the period September-December 1992. Later, this order was later entirely confirmed by a note of 7-10 June 1992, that [Buyer] had asked to be considered irrevocable. However, [Buyer] then submitted individual orders for only a part of the order. In addition, [Buyer] delayed in receiving that supply and in paying for it and also refused the remaining 69,000 pieces.

Mainly, [Seller] asked for rescission for breach of the 10 July 1992 contract due to the non-performance of [Buyer], with damages; alternatively, [Seller] sought relief for [Buyer]ís withdrawal through the recognition of the above import as an indemnity; subordinately, [Seller] asked for a declaration of [Buyer]ís pre-contractual liability for the unjustified interruption of negotiations.

[Seller] also alleged that [Buyer] began circulating defamatory rumors about the quality of [Seller]'s products as well as about the forgery of the trademark that [Seller] should have put in place. [Seller] asked to have [Buyer] declared responsible for discrediting [Seller]'s business reputation.

Finally, [Seller] asked for damages for the delay in paying the price due for the processed supply.

2. [Buyer], with an answer and counterclaim served on 9 December 1993, asked the Court to resolve the question of jurisdiction in its favor by declaring the jurisdiction of English courts.

Grounds for the decision

1. [Buyer]'s counterclaim is not well founded and the jurisdiction of the Italian judge over the [Buyer] has to be declared with respect to [Seller]ís claims.

2. The question of jurisdiction has to be decided on the basis of rules stated by the Convention signed in Luxembourg on 9 October 1978, concerning the United Kingdom of Great Britain and Northern Ireland adhesion to the Brussels Convention of 27 September 27 1968 (L. 29 November 1980, n.967).

[...]

     4.2 According to Articles 53 and 3(1) of the Brussels Convention, [Buyer], having its headquarters in London, had to be sued before an English judge. However,Article 3(1), accords the Plaintiff [Seller] the right to summon the [Defendant Buyer] before another judge, if the conditions present in Section 2-6 of Chapter II of the Brussels Convention occur.

With respect to that which the [Seller] sought before the Tribunale of Rome, the issue has to be resolved whether the jurisdiction over the [Buyer] is founded on the above dispositions.

     4.3 With its claim, [Seller] asserts that the parties had concluded a contract and, on the basis of that contract, [Buyer had the duty to buy the entire supply [of goods] that was the object of the order given by [Buyer] with [Buyer]ís letters of 7-10 June 1992; and that [Seller]ís claim is intended to obtain rescission for breach of contract due to the non-performance of [Buyer] because [Buyer] refused, without a justified reason, to ask [Seller] to output the entire supply as set in the order. [Seller] also seeks damages against [Buyer].

Always asserting that a contract had been concluded between the parties, and that [the contract] could be regarded as a works contract [Contratto di Appalto], [Seller] presents an alternative basis for his right: if [Buyer] had the right to withdraw from the works contract, [Buyer] because of the withdrawal, would still be obligated to pay an indemnity in an amount corresponding to the amount [Seller] has asked as damages for non-performance.

According to the interpretation given by the Corte di Giustizia ([European] Court of Justice), Article 5, n. 1 of the Brussels Convention applies to the demand; see sentence 4 March 1982, case 38/81, which affirmed that demands having to do with the existence of contract fall within the contract subject matter; sentences 6 October 1976, case 14/76 and 8 March, case 9/87 in which are examined claims for damages as a consequence of the withdrawal from requirements contracts [Contratto di Concessione] and agency. In both perspectives given to the demand [contract for the sale of goods or works contract], the obligation derives from contract, constituting either damages for non-performance of a contractual duty or the effect of the exercising of a power which comes to a party from a pre-existing contract.

The same considerations also apply to the third and the last demand of the [Seller], considered as a claim for specific performance and as a claim for damages for the delayed performance of the contract mentioned above.

Starting from the sentences 6 October 1976, cases 12/76 and 14/76, the European Court of Justice has stated the principle that "the place where the obligation has been performed or has to be performed" must be determined according to the law that, as the international private law of the forum, applies to the obligation in dispute.

As it has been said before, [Seller], in proposing its demands before the Tribunale of Rome, showed that the contract could have been considered as a works contract instead of a contract for the sale of goods

The distinction between a contract for the sale of goods and a works contract, in cases Ė such as the case considered Ė in which the consideration of one party consists in giving or doing [something], has to be made with regard to the essential aim of the contract and of the meaning that the supply and the consideration of doing assume, in viewing of the result pursued by the parties.

Applying these criteria, the contract is a works contract, not a contract for the sale of goods, when the giving of the factor constitutes a simple means of the output of the product, whose achievement constitutes the essential purpose of the transaction. The issues converge in this sense under either the criteria followed in the application of the rules of the [Italian] Civil code (Cc) or the criteria expounded in Art. 3 of the Convention on Contracts for the International Sale of Goods [CISG], adopted in Vienna on 11 April 1980 (L. 11 December 1985, n.7655).

The Court abstains from resolving the problem of judicial qualification of the contract as a contract for the sale of goods or a works contract, since the conclusions do not change with regard to the effects of jurisdiction.

If the contract is considered to be a contract of sale, the obligation deduced in judgment as basis of both demands, becomes the one of payment of the price, and the performance should have had had to be obtained at the creditor's domicile (Art. 57 of the Vienna Convention; Art. 1182(3) Cc; therefore the Italian judge has jurisdiction.

[...]

For these reasons

The Court declares the jurisdiction of the Italian judge and compensates the expenses of this phase of the judgment.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff, Tivoli Group S.r.l. of Italy, is referred to as [Seller]; Defendant Alfred Dunhill Ltd of the United Kingdom, is referred to as [Buyer].

Translatorís note on abbreviations: Cc = Codice civile [Italian Civil Code of 1942]; L. = Italian ordinary law, enacted by the Parliament; S.r.l. = Società a responsabilità limitata [Limited partnership].

** Irina Dukic [add bio lines].

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

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Pace Law School Institute of International Commercial Law - Last updated August 12, 2005
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