Italy 5 November 1998 Supreme Court (AMC di Ariotti e Giacomini v. V.B.)
[Cite as: http://cisgw3.law.pace.edu/cases/981105i3.html]
DATE OF DECISIONS:
CASE NUMBER/DOCKET NUMBER: 11088
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Austria (defendant)
GOODS INVOLVED: Women's stockings
ITALY: Corte di Cassazione 5 November 1998
Case law on UNCITRAL texts (CLOUT) abstract no. 726
Reproduced with permission of UNCITRAL
The seller, an Italian corporation with its place of business in Italy, agreed to sell women stockings to the buyer, an Austrian company, whose place of business was in Austria. Since the buyer had failed to pay the whole price, the seller brought an action for payment of the price before the Italian judge, alleging the breach of the supply contract for partial performance. The defendant claimed that the Italian judge did not have the authority to decide the issue in controversy, as its place of business was in Austria.
The issue before the Supreme Court was therefore whether the Italian court had the power to adjudicate the case.
The Supreme Court held that the relevant rule was to be found in article 57 CISG, a Convention that both states had ratified at the time of the litigation.
On the basis of article 57(1) CISG, if the buyer is not bound to pay the price at any other particular place, it must pay it to the seller at the seller's place of business or, if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place.
The Court stated that since the parties had not determined different rules in their contract, the general principle provided for by the aforesaid article 57 applies. According to this, the payment for the supplied commodities was to be performed by the buyer at the seller's place of business, therefore Italy was designed as "forum destinatae solutionis".
The Court ruled that the Italian judge had jurisdiction over the case in light of both article 57 CISG and article 4, n. 2, Italian Civil Procedure Code, which states that the foreigner can be sued before an Italian judge if the action implies obligations to be fulfilled in the territory of Italy.Go to Case Table of Contents
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Article
Classification of issues using UNCITRAL classification code numbers:
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CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=349&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (Italian): Giurisprudenza Italiana, Recentissime (1998) 164-165 and GIUS (1999) 216 [excerpts]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=349&step=FullText>
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents