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CISG CASE PRESENTATION

Switzerland 8 June 1999 Ticino Appellate Court Lugano (Wine bottles case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/990608s1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19990608 (8 June 1999)

JURISDICTION: Switzerland

TRIBUNAL: Cantone del Ticino, La seconda Camera civile del Tribunale d'appello [Appellate Court] [Lugano]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 12.19.00036

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Wine bottles


Case abstract

SWITZERLAND: Cantone del Ticino, Tribunale d'appello 8 June 1999

Case law on UNCITRAL texts (CLOUT) abstract no. 336

Reproduced with permission from UNCITRAL

An Italian manufacturer and seller, plaintiff, sold wine bottles to a Swiss buyer, defendant, for distribution in Switzerland. The buyer did not pay the purchase price and claimed damages, alleging lack of conformity.

The court denied the claim. According to the agreement, the time-limit for notice of lack of conformity was 8 days from the date of receipt of the goods. The court held that the parties were entitled to make such an agreement and thereby to derogate from article 39 CISG. The buyer gave notice after the 8-day period had elapsed, which resulted in a total loss of its right to rely on lack of conformity. Moreover, the court found that the belated notice did not sufficiently specify the nature of the lack of conformity.

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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 6 ; 39(1)

Classification of issues using UNCITRAL classification code numbers:

6A [Convention yields to contract: modification of Convention by contract];

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time (contract period of time, in this case) specifying the nature of non-conformity)]

Descriptors: Autonomy of parties ; Lack of conformity notice, timeliness ; lack of conformity notice, specificity

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Editorial remarks

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Citations to other abstracts, texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=483&step=Abstract>

German: [2000] Schweizerische Zeitschrift für internationales und europäisches Recht 120

CITATIONS TO TEXT OF DECISION

Original language (Italian): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=483&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 34

French: Spiegel, Dalloz, Cahier Droit des Affairs (30 November 2000) No. 42/7007, 445-446

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Court of Appeal (Tribunale d’appello) Lugano
8 June 1999 [12.99.00036]

Translation [*] by Anoosha Boralessa [**]

1. [...] The Plaintiff [Seller] has repeatedly provided the Defendant [Buyer] – its distributor for Switzerland – with glass bottles for the sale of wine. The dispute principally concerns the value corresponding to the following four supplies of goods:

-   Invoice no. 130 of 24 July 1996 for It£ [Italian Lira] 15,505,350. – (Doc. D)
- Invoice no. 159 of 21 November 1996 for It£ 14,319,000. – (Doc. E)
- Invoice no. 5 of 12 February 1997 for It£ 9,452,52. – (Doc. F)
- Invoice no. 7 of 25 February 1997 for It£ 9,452,520. – (Doc. G), that is, in total It£ 48,729,390.

To this sum, the [Seller] adds It£ 12,986,000 – equal to the value of a certain number of flat wagons needed to transport the merchandise and which remained at F. SA until the business relationship between the two parties ended.

The [Buyer] does not dispute the total sum for the four deliveries which has not been paid, but raises in partial counterclaim, a credit for Sfr [Swiss francs] 24,424 corresponding to the expenses it incurred for the remedial measures it had to take with respect to its own clients relating to the supply of defective goods. With respect to the flat wagons, the [Buyer] maintains that there was no such credit owing as the merchandise had been properly redelivered to the [Seller]. Furthermore, [Buyer] challenges the proposed method of calculating interest in this matter.

2. With regard to the objection to payment, the provincial secretary of the magistrate’s court of Lugano has confirmed that some of the merchandise that was ordered in December 1995 and supplied in several installments in 1996 was defective. However, it also observed that the parties had already settled the dispute relating to the defective goods by a delivery to the [Buyer] of two notes of credit for the sum of It£ 20,491,499. Moreover, the first judge rejected the credit under discussion since the [Buyer] had not given timely notice of the defects in the goods, and therefore failed to comply both with the general conditions of the contract and art. 39 of the Vienna Convention, applicable in this case of international sales of goods. With regard to the flat wagons supplied with the bottles, on the basis of the calculations referred to the delivery and the redelivery of the goods, it acknowledged the whole claim. From the censures of the appeal and of the relative observations of the counterparty, the court makes the following observations

3. With regard to the applicable law, the [Buyer] challenges the magistrate court’s reference to the conditions of the contract and argues that court applied the CISG incorrectly.

With regard to the first point, the [Buyer] considers the circumstances when it would not be possible to refer to the general conditions of the contract (GC) only when it is convenient, such as this matter, where the proceedings take place at Lugano while the contract provided for the Tribunal of Orveito to have jurisdiction over all disputes (Doc. c sheet 2). Contrary to what may appear, the [Buyer] never raised an objection on the grounds of lack of territorial jurisdiction, even after the time limit to raise such a challenge had expired; but its argument cannot be followed because the parties may renounce, even tacitly, a conventional forum: in this case, the [Buyer] by entering into the merits of the dispute without making any objection whatsoever, has permitted an extension of forum to be implemented (art 22 CPV [*] 1(b) CPC [*]) with respect to the conventional forum. But this regards exclusively point 11 of the CC [*] and cannot invalidate the other norms that have been agreed upon which have no relation to where the proceedings take place.

The Vienna Convention of 11 April 1980 (CISG) established a body of norms of substantive law that govern the sales of good between individuals established in different countries provided these countries are party to the CISG. (Erdem H.E., The Delivery of Merchandise According to the Vienna Convention, Friborgo 1990, p. 15). The CISG entered into force in Italy from 1 January 1988 and in Switzerland from 1 March 1991; this [Convention] could therefore be applied in this dispute. The [Buyer] considers the first judge’s reference to art. 39 CISG to be incomplete, as it failed to take account of paragraph (2) of art 39. However, in the case under examination [this is irrelevant as], this second paragraph does not deal with the time limits for the dispute: in fact the second paragraph does not deviate from the contents of paragraph (1), as all it does is specify that the buyer loses its right to rely on a lack of conformity of goods if [Buyer] does not notify the seller at the latest within a two-year period. (Dessemontet E, International Sales of Goods Contracts, Lausanne 1991 – Cedidac, p. 228- 229).

4. [...]

5. The first judge has resolved this dispute also having reference to the duty of the buyer to give timely notice of the defects of the goods it purchased. In this regard, it is recalled that one of the objectives of giving notice of defects is to clarify, as soon as possible, in the seller’s interest if the merchandise was or was not accepted by the buyer, that is, if the seller must wait so that the buyer can rely on its right of guarantee (Honsell H., in Comm. Di Basilea al Co ed, 2 ad 201 co no 1). For this reason, art. 201 of the general terms (which has similar elements to the analogous rules of the CISG) provides that the buyer must duly notify any defects in the purchased products as soon as it is permitted to do so in the ordinary course of things: once this time limit has expired, the merchandise is deemed [to be] accepted and the buyer loses its right to the guarantee. (Honsell, op. cit. ibid, No. 2). Furthermore, the merchandise may be examined in different places and at different times, taking particular account of trade usages relating to the contractual agreements. If the merchandise is meant for resale, as in the present case, the buyer itself must also verify, except if otherwise agreed. With regard to the content of the notice, it must be such as to put the seller in a position to be able to evaluate the extent of the complaint (Honsell, op. cit. ibid., No. 10); in other words, the seller, on the information received, must be able to decide how to handle the claim of non-performance; accordingly, the notice must have regard not only to the nature of the defect but also to the quantum of the defect (Keller I Seihr, op. cit., p. 84).

In this case, point 7 of the general conditions provides that any complaint must be communicated in writing by recorded post within eight days from the date on which the goods were received, apene decadeza/forfeiture (Doc. c). This time limit – clearly to the seller’s advantage – takes precedence over the CISG, the application of which can be excluded or limited in accordance with the principle of party autonomy. (Herrmann O., Anwendungsbereich des Weiner Kaufrechts, in Weiner Kaufrecht, Berger Tage fur die juristische Praxis, 1991, p. 93). In the present case, one does not know of any agreement on any possibility of verifying the merchandise by third parties; while this seems to be able to be excluded by the citate of the buyer to verify personally the defective quality of the goods supplied.

Furthermore, it is not known when the notice was given; however, the seller accepted it and responded in the manner described above. Not even the entity of notice is noted that in any event should have been verified by Mr P, whose relationship then transmitted by the seller to the manufacturer V.C.P. (just now) indicated - as already said – defects in 71,900 bottles (Doc. 1). In fact, the [Buyer] has not demonstrated either the defective bottles referred to in the aforementioned verification were found at the clients; or that, in particular, the delivery to the clients indicated in the attached response, remained excluded from the negotiations of the liquidation of the outstanding account relating to the defects. If one wanted to admit the [Buyer]’s argument and, furthermore, if one wanted to leave out of consideration the literal meaning of the agreements negotiated October to December 1996 (Doc. U), the buyer can nevertheless be rebuked for never notifying the seller that a significant quantity of bottles was truly defective: nor in the contractual time limit of eight days from when the clients had notified it of the damages that they discovered, nor (if ever appealed in the application) in a reasonable period referred to in art. 39(1) CISG, according to which the notice must contain information of the nature, the content and the essence of the complaint (Dessemontet, op. cit., p 229). In any event, the buyer’s right to rely on the defects found in the merchandise, ultimately not included in the transaction referred to in Doc. U has lapsed.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellee of Italy is referred to as [Seller] and the Defendant-Appellant of Switzerland is referred to as [Buyer]. Amounts in the currency of Italy (Italian lira) are indicated as [It£]; amounts in the currency of Switzerland (Swiss francs) are indicated as [Sfr].

Translator's note on other abbreviations: CC = Codice Civile [Italian Civil Code of 1942]; CPC = Codice di Procedure Civile [Code of Civil Procedure]; CPV = Codice Penale in Vigore [Penal Code currently in force].

** 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 condidate for a diploma in International Commercial Arbitration at Queen Mary, University of London.

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Pace Law School Institute of International Commercial Law - Last updated December 6, 2006
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