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CISG CASE PRESENTATION

Italy 30 January 1997 District Court Torino (C. & M. v. Bankintzopoulos) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/970130i3.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISIONS: 19970130 (30 January 1997)

JURISDICTION: Italy

TRIBUNAL: Pretura [District Court of First Instance] di Torino

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: C. & M. S.r.l. v. D. Bankintzopoulos & O.E.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Greece (defendant)

GOODS INVOLVED: Cotton fabric


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 39 ; 74 ; 78 [Also cited: Article 35 ]

Classification of issues using UNCITRAL classification code numbers:

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time (notice seven months after delivery held not timely)];

74A [Damages (general rules for measuring): loss suffered as consequence of breach];

78B [Interest on delay in receiving price: rate of interest (Italian statutory rate applied)]

Descriptors: Lack of conformity notice, timeliness ; Damages ; Interest

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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=274&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Italian): Giurisprudenza Italiana (1998) 982-985; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=274&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.583; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (cases cited in addendum to opinion)

Italian: Callegari, Giurisprudenza Italiana (1998) 982-984

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Case text (English translation)

Queen Mary Case Translation Programme

Pretura di Torino, 30 January 1997
C. & M. S.r.l. v. D. Bankintzopoulos & O.E.

Translation by Charles Sant 'Elia [*]

Translation edited by Angela Maria Romito [**]

Procedural history

By summons dated 29 January 1996, [seller, a firm with its relevant place of business in Italy] brought suit against [buyer, a firm with its relevant place of business in Greece] to have [buyer] held liable and ordered to pay the sum of Lire 13,218,000 plus interest and devaluation on the price owed for the sale of the goods indicated in invoice 30/94.

The [seller] pleaded that:

- In July 1994 it had provided to [buyer] the goods indicated in invoice 30/94, which price was to be paid upon delivery of the goods. Following the buyer’s request, [seller] consented to the clearing of the goods at customs without receiving the corresponding amount, the payment of which had been set at thirty days from receipt of the goods.

- The payment was not made by that date, nor following the first demands for payment. Only after the threat of legal action was there a communication from the [buyer] which asserted that the goods did not conform with those ordered and that [buyer] requested a discount. This discount was refused, the objection being wholly a sham excuse and, above all, late.

[Buyer] counterclaimed to obtain rescission [avoidance] of the sales contract due to [seller's] culpable conduct. In particular, the [buyer] alleged that:

- The patterns of fabric which had been shown to it by [seller] were composed of 100% white cotton. It had indicated in its order "that it wanted to acquire not such fabric, but fabric of bordeaux-gold and blue-gold color".

- The [seller] also sent "fabric of a non-conforming consistency with respect to that examined at the time the order was placed, to be precise, cotton mixed with polyester". The [buyer] immediately contested this delivery and, after futile attempts, returned the goods to the seller through Dim Trans International Transport on 25 April 1995. Only after public notice by [seller's] counsel did [buyer] become aware that the seller had refused to take back the returned goods.

At the hearing of 23 April 1996 the parties unanimously renounced the requirements of art. 183 Italian Code of Civil Procedure (c.p.c.) and asked to set a hearing for the preliminary statements of the case under art. 184 c.p.c.

In the course of the hearing held 9 July 1996, the [seller] and [buyer] gave written statements that previously, to be exact, in February 1996, the [buyer] had extra-judicially consigned to the [seller] part of the fabrics making up the sample patterns shown, produced at trial, to have their composition analyzed by the Istituto Tecnico Industriale del Setificio "Paolo Carcano" di Como [Industrial Technical Institute of the "Paolo Carcano" Silk-mill of Como].

At the same hearing, the results of the analyses were produced by the [seller]. During specification of the conclusions, the [buyer] renounced the CTU request. [Consulenza Tecnica D'Ufficio ("technical consultancy" ordered by the Court, i.e., expert inquiry plus evidence)]

Considering that means of proof had not been proposed, at the subsequent hearing of 1 October 1996, on the reported conclusions . . . the magistrate set the exchange of the recapitulations of the case and of the reply memorials in terms fixed by art. 190 c.p.c. [Civil Procedure Code], recalled by art. 314 c.p.c., and further adjourned to the session of 14 January 1997 for discussion under art. 62, dispositions for execution, c.p.c.

Grounds

The principal claim is well founded and must be sustained; the counterclaim is unfounded and is rejected.

Before addressing the merits of the case, owing to the difficulty and the particularity of the proposed question, it shall be opportune to illustrate the general relevant principles, in order to then apply them to the case at hand. . . . According to the meanings of art. 35(1) of the 1980 Vienna Convention, "the seller must deliver goods which are of the quantity, quality and description required by the contract". . . "[G]oods which the seller has held out to the buyer as a sample or model" must possess such qualities. (art. 35(2)(c) CISG).

The seller is responsible to the buyer for defects of conformity existing at the moment of the passage of risk to the buyer, even if the non-conformity presents itself only after that moment. The buyer is however required, under penalty of forfeiture of rights, to disclose defects 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." (art. 39(1) CISG). In tackling this delicate issue, the Convention [in its art. 39(1)] contains a general clause ("within a reasonable time") unknown to our Civil Code. Our Civil Code imposes upon the buyer the duty to disclose defects to the seller within eight days from the time of their discovery. (art. 1495, paragraph 1, Civil Code)

In the case at hand, according to as much as is maintained by the [seller], [buyer] received the goods in September 1994 (doc. 1, principal part), but only in the following March did [buyer] disclose the defect to the seller in the undated letter received by [seller] in March 1995 (cf. doc. 7, principle part, and doc. 5, stipulated part). The [buyer] has placed in discussion such circumstance and has maintained that it "immediately" contested the goods supplied, but it has not specified by which means, apart from the undated letter received by [seller] in March 1995, it would have brought the claimed "defects" of the goods to the seller’s attention. To strengthen its hypothesis regarding the "defects" of the goods, the [buyer] has made exclusive reference to the undated letter received by the [seller] in March 1995 (cf. recapitulation of the case at p. 3).

For all that follows from the acts, [buyer] must hence maintain that the presumed defects were disclosed for the first time in the undated letter received by the [seller] in March 1995 (cf. doc. 7, principal part and doc. 5, stipulated part. One will recall that under art. 2697 C.c. [Italian Civil Code], the probative burden of the immediacy of disclosure falls on the defendant [in this case, the buyer], who is bound to show the facts which constitute the foundation of the claim made to bear (actore incumbit probatio).

Before examining the allegations concerning the existence of the defects, it is necessary to establish whether their disclosure was timely, since in the case of lateness the buyer would have lost the right to recover on them (art. 39(1) CISG).

As we know, the buyer must disclose the defect 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" (art. 39(1)). The moment in which the defects have been discovered or should have been discovered coincides with the delivery of the goods which, in the case at bar, occurred in the month of September 1994; the disclosure of the defects was made in March 1995, hence, about seven months later.

Keeping in mind the nature and value of the goods which were the object of the sale, the term of seven months must be deemed unreasonable and excessive with the consequence that the buyer has lost the right to recover on the defects, regardless of whether the defects actually existed. (art. 39(1) CISG)

For these reasons, the [seller's] claim for payment of the price must be accepted and [buyer's] counterclaim for rescission of the contract rejected.

The [seller's] demand for payment of greater damage under art. 1224 C.c. [Italian Civil Code] may be further granted, seeing that, should it be proven that the [seller] suffered damages greater than that returned with lawful interest (cf. the interest liquidation tables produced sub 11 by [seller]); the aggregate interest is to be fixed in the measure of 12% and is to run from 13 October 1994 (the [buyer] has not challenged that the parties agreed upon payment thirty days from receipt of the goods). . . .


FOOTNOTE

* Charles Sant 'Elia has a B.A. in Political Science and Italian Literature from New York University and studied Political Science at the Universitá degli Studi di Firenze. He received his J.D. from Pace University School of Law and is admitted to the Bar of the States of New York and Connecticut. In addition to editing and translation of cases for the cisgw3 database, he has translated Italian texts on linguistics into English.

** 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.

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