Queen Mary Case Translation Programme
Translation by Charles Sant'Elia
Procedural history
Italian firmTessile 21 S.r.l in liquidation (formerly Hertess S.r.l.) [seller] brought suit against Ixela S.A. of Athens [buyer], seeking recovery of a claim of Lire 15,685,060 for the sale of high fashion textiles. The claim is for the payment of the price which [seller] alleges the [buyer] had not settled in full, notwithstanding repeated requests, even by means of counsel. [Seller] maintains that goods had been supplied for a price of Lire 21,209,860. Deducting the sum already paid, the money debt is the sum indicated above plus accrued interest.
[Seller] seks judgment against [buyer] requiring payment of this sum, with legal interest and monetary devaluation from the due date of the invoice to settlement of the claim.
Although timely served, the [buyer] did not file an answer. Consequently a default judgment was entered.
(…)
After the presentation of the evidence, which was wholly documentary, the case went to decision on the claims of the [seller].
Grounds of the decision
Since the contractual relationship adduced during the proceedings is international, we must first identify the substantive law applicable to the relationship. The Court cannot share the [seller's] view that the rules of the Rome Convention of 19 June 1980 determine the applicable law.
This is so, not only because the conflicts rules relating to international sales are not those provided for by the Rome Convention, but rather those provided by the Hague Convention of 15 June 1955 (ratified by Law 4 February 1958, n. 50 and entered in force on 1 September 1964). That, by virtue of either Art. 21 of the Rome Convention or of Art. 57 of Law 218/1995 take precedence over the conflict rules of the Rome Convention. Also, in recourse to international private law, one must prefer relevant rules of uniform law created by international conventions which, by reason of their specialty, prevail over conflict rules.
In Italy the United Nations Convention on Contracts for the International Sale of Goods (CISG), ratified by Law 11 December 1985, no. 765, entered into force on 1 January 1988. It is necessary to determine whether it is applicable.
This Convention applies to contracts for the sale of goods concluded between parties having their principle places of business [loro sede d'affari] in different States, where these States are both Contracting States (Art. 1(I)(a)) or the applicable rules of private international law lead to the law of a Contracting State (Art. 1(I)(b)). Even though the Convention was not applicable by way of Art. 1(I)(a) in as much as at the moment of the contract formation Greece was not a Contracting State (in fact, Greece had ratified the Convention only on 1 February 1999), its applicability is not excluded. The CISG is in fact applicable (under Italian law) by virtue of Art. 1(I)(b), since the rules of Italian international private law lead to the law of the Italian seller under applicable law (Art. 3(1) of the Hague Convention of 1955), that is to say, they lead to the law of a State which at the moment of contract formation was a Contracting State.
[Seller] has proved that it sold [buyer] the textiles for which it issued invoices 768/97 and 190/98 and has a claim for this sale in the amount of Lire 15,685,060. In fact, in addition to the invoices (document 2), there was adduced at trial an authentic excerpt from the bookkeeping records regularly kept in the course of business of the [seller], from which is evidenced the claim in the terms indicated by the [seller] (document 8). This document constitutes sufficient proof within the meaning of Art. 2710 Civil Code.
Lastly, also produced were a copy of a letter and of a fax from [seller's] attorney seeking payment, which reached [buyer] in the summer of 1998 (documents 3 and 4). No responses by the latter to this demand followed. The fact that the defendant [buyer] has not maintained any justification nor sought to interpose an answer, confirms, according to a presumptive line of reasoning, the existence of the obligation according to the terms indicated by the plaintiff [seller].
Consequently, pursuant to Articles 53 and 62 of the CISG, [buyer] must be ordered to pay to the [seller] the sum of Lire 15,685,060.
Regarding interest on the sums not paid, it will be observed that the CISG provides only a general right to interest, without specifying which rate is to be applied. In light of the fact that the drafters of the Convention have intentionally left the problem of the applicable rate unresolved, as one evinces from the travaux préparatoires, one cannot maintain that one is dealing with one of the areas which, by virtue of Article 7(2) of the Convention should be governed by the general principles upon which the Convention is based. Instead it is a question not at all addressed by the Convention and which hence is to be resolved in light of the law applicable (to be determined by the rules of Italian private international law), that is to say, in light of Italian law (such being the law of the seller, which Art. 3(I) of the Hague Convention of 1955 beckons to). This solution also corresponds to that adopted by foreign jurisprudence (see, for example, Pretore della giurisdizione Locarno-Campagna [of Switzerland] 16 December 1991 [http://cisgw3.law.pace.edu/cases/911216s1.html]) which, although not binding, is however to be taken into consideration as required by Art. 7(1) of the CISG. Consequently, interest is determined according to the measure of the legal rate in force in Italy.
With respect to the period of the interest, it will be noted that being in default is not required; interest is hence due from the due date of the invoice to settlement of the debt.
Nothing, on the other hand, is due by right of greater damages from monetary devaluation as far as, in the period of time involved here, the legal annual interest rates have always been greater than the rate of inflation. On the other hand, the plaintiff [seller] which has the burden of proving them (Art. 7(2), Art. 79 CISG) [sic: "Art. 7(2), Art. 74 CISG"?], has not proved damages incurred because of the missing payment and the Convention clearly distinguishes between interest and damages (see Art. 78).
...omissis...
Pace Law School
Institute of International Commercial Law - Last updated July 17, 2001