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CISG CASE PRESENTATION

Italy 31 January 1996 District Court Cuneo (Sport d'Hiver di Genevieve Culet v. Ets. Louys et Fils) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/960131i3.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19960131 (31 January 1996)

JURISDICTION: Italy

TRIBUNAL: Tribunale [District Court] Civile di Cuneo

JUDGE(S): Meinardi, Petragnani, Macagno

CASE NUMBER/DOCKET NUMBER: 45/96

CASE NAME: Sport d'Hiver di Genevieve Culet v. Ets. Louys et Fils

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Italy (defendant)

GOODS INVOLVED: Sports clothes


Case abstract

Prepared by Camilla Andersen for commentary on notice issues under Article 39(1)

"In a 1996 judgment of the Tribunale Civile of Cuneo, the seller delivered sports clothes to the buyer which were in French sizes rather than Italian sizes as agreed upon. Notice of this lack of conformity was given twenty-three days after delivery of the goods. The Court stated that the non-conformity was easily discernible, and that this would reduce the period of time acceptable from the date of delivery, i.e., technically reduce the time period acceptable under Article 38 and set the 'ought to have discovered' time closer to the time of delivery. The Court did not actually state when the non-conformity should have been discovered under Article 38, so when it concluded that twenty-three days after delivery was not an acceptable notice time-frame, it is not easy to discern what the actual time-frame for notice-giving after discovery is. It would, however, seem safe to conclude that notice was not timely when delayed about twenty days after discovery of the lack of conformity. This was not considered a reasonable time by the Tribunale Civile. In determining reasonable time, the judge turned to case law from other countries on the same issue as precedents." Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 141-142.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7(1) ; 38 ; 39 [Also perhaps relevant but not discussed: Article 40]

Classification of issues using UNCITRAL classification code numbers:

7B1 [Materials for interpretation: international case law];

38A1 [Buyer's obligation to examine goods as soon as practicable in the circumstances];

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]

Descriptors: Examination of goods ; Lack of conformity notice, timeliness

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Editorial remarks

EDITOR: Albert H. Kritzer

At issue is a situation in which a French seller, allegedly by mistake, shipped to an Italian buyer sport clothes in French sizes rather than Italian sizes. French sizes are stated to be much larger than Italian sizes. The court considered Articles 38 and 39 and concluded that a notice of lack of conformity sent by buyer to seller 23 days after the goods were delivered was untimely. In support of this ruling, the Italian court cited interpretations of Article 39(1) by a Swiss court and a German court. An issue not addressed by the court is the possible relevance of Article 40 ("The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer.").

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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=160&step=Abstract>; see also <http://soi.cnr.it/~crdcs/crdcs/it310196a.htm>

Italian: Diritto del Commercio Internazionale (1996) 653 No. 126

CITATIONS TO TEXT OF DECISION

Original language (Italian): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=160&step=FullText>; see also <http://soi.cnr.it/~crdcs/crdcs/it310196f.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-225 [237 n.905 (notice of lack of conformity)]; Honnold, Uniform Law for International Sales (1999) 280 [Art. 39(2) (timeliness of notice)]; For a survey of close to 100 judicial and arbitral rulings on Article 39(1), go to the 1998 Pace essay on this subject by Camilla Baasch Andersen; Witz, ICC International Court of Arbitration Bulletin, Vol. 11/No. 2 (Fall 2000) 20 n.39; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.583, 826-829; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (cases cited in addendum to opinion); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 82; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 17; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 38

French: Spiegel, Dalloz Sirey (1997) 222-223

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Case text (English translation)

Queen Mary Case Translation Programme

Tribunal Civile di Cuneo 31 January 1996
Sport d'Hiver di Genevieve Culet v. Ets. Louys et Fils

Translation [*] by Bruno Cilio [**]

Translation edited by Angela Maria Romito [***]

[...]

One must refer to the Vienna Convention [CISG] to determine the substantive rules applicable to this dispute. Although the parties did not refer to the CISG, its rules must be followed by this Court from the principle iura novit curia, apart from the pleadings of the parties.

Article 1 of the Convention applies to contracts for the sale of goods between parties whose places of business are in different States, as long as they are Contracting States, or when the rules of private international law of the lex fori lead to the application of the law of a Contracting State.

The Convention had been ratified by both Italy and France at the time the contract was drawn up. As a result, there is no doubt that the rules applicable to this litigation are those of the CISG, and that they prevail over the internal legal systems of the countries where the parties have their residences.

As a consequence, we must consider the complaints raised by [buyer] in the light of the rules of the CISG, starting with the objection about defects of the goods sold. [The Italian buyer] complains that [the French seller] shipped, by mistake, the sport clothes in French sizes rather than Italian sizes, which were so much larger sizes than those normally sold in Italy that they were almost unsaleable.

The [seller], on the other hand, alleged that the notice of lack of conformity was untimely.

Article 38 of the Vienna Convention provides that buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. Such period, in the event of carriage of goods, starts from the moment of delivery. In addition, Article 39(1) specifies that 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 its nature within a reasonable time after he has discovered it or ought to have discovered it.

In this case, the delivery occurred on 24 March 1992 as evidenced by the bill of entry, while the objections were communicated to the seller by fax on 16 April 1992: a delay of 23 days.

Scholars who have considered Articles 38 and 39 of the Convention point out that the time of notice is intentionally elastic, leaving space to the interpreter and in the end to the judge, in terms of reasonableness, so that the degree of flexibility will be evaluated in accordance with the practicalities of each case.

The -rare- case law recoverable on this issue (rulings handed down by foreign judges) appears decidedly strict, emphasizing the preventative burden imposed upon the buyer by Article 38: the buyer is supposed to examine the goods as soon as possible.

Where defects are easily recognizable, the time for notice will be reduced. In a Swiss decision dated 27 April 1992 [see <http://cisgw3.law.pace.edu/cases/920427s1.html>] ruling on a similar case involving furniture supplied by an Italian seller to a Swiss buyer, the Pretore della giurisdizione di Locarno Campagna held that if there is an obvious defect, buyer must immediately give notice of it; and in an identical German case, dated 31 August 1989, involving clothes -- the same type of goods as in this case -- the Landgericht Stuttgart held that notice given 16 days after receipt of the goods was not timely [see <http://cisgw3.law.pace.edu/cases/890831g1.html>].

Consequently, the ruling in this case is buyer's notice was late; it was not given within a reasonable time in accordance with Articles 38 and 39 of the Vienna Convention. Buyer's objection regarding the defects of the clothes sold must therefore be rejected.

The costs of the trial are to be compensated between the parties.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the plaintiff of France is referred to as [seller] and the defendant of Italy is referred to as [buyer].

** Bruno Cilio received his LL.M in Comparative Law from the Pace University School of Law.

*** 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.

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Pace Law School Institute of International Commercial Law - Last updated December 5, 2005
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