Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Italy 31 March 2004 District Court Padova (Pizza boxes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040331i3.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20040331 (31 March 2004)

JURISDICTION: Italy

TRIBUNAL: Tribunale [District Court] di Padova

JUDGE(S): Allessandro Rizzieri

CASE NUMBER/DOCKET NUMBER: 40466 of Rig 2002

CASE NAME: Scatolificio La Perla S.n.c. di Aldrigo Stefano e Giuliano v. Martin Frischdienst GmbH

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Pizza boxes


Case Summary

Prepared by Ryan E. Thompson

A buyer from Germany and a seller from Italy entered into a contract for the sale of pizza boxes. The court addressed the following issues: (1) whether payment was due at the time of delivery as required under the CISG or rather the date stipulated in an invoice issued concurrently with the shipment of the goods by seller; (2) damages; and (3) interest on damages. The Court applied CISG articles 58, 29, 74 and 78 determining, in relevant part, that: (1) payment was due on the date indicated in seller’s invoice as it modified the default payment obligation under the CISG; (2) buyer breached its obligation by failing to make payment by the dated stipulated in the seller’s invoice; (3) the buyer was responsible for damages resulting from the non-payment of goods; and (3) seller was entitled to interest on the unpaid sum, the rate of which was to be decided by the Italian court.

Go to Case Table of Contents

Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 58 ; 59 ; 78 [Also cited: Articles 4 ; 7 ; 9(2) ; 25 ; 29 ; 63 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

58A [Time for payment: buyer to pay when goods placed at buyer's disposition, unless provided otherwise];

59A [Payment due without request: payment due at time fixed or determinable by contract or Convention];

78B [Rate of interest]

Descriptors: Price ; Interest ; Damages ; Interest as element of damages ; Modification of contract

Go to Case Table of Contents

Editorial remarks

Go to Case Table of Contents

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=966&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Italian): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/823.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=966&step=FullText>; Giurisprdenza di merito (2004) 1065-1068

Translation (English): Text presented below; (German) Internationales Handelsrecht (1/2005) 33-34

CITATIONS TO COMMENTS ON DECISION

English: Perales Viscasillas, Mª del Pilar, Late Payment Directive 200/35 and the CISG, 19 Pace International Law Review (Spring 2007/1) nn. 58-66

Italian: Franco Ferrari, La disciplina sustanziale della vendita internazionale ed il saggio d'interessi, Giurisprudenza di merito (2004) 1069-1079

Go to Case Table of Contents

Case text (English translation)

Queen Mary Case Translation Programme

Tribunale di Padova

Scatolificio La Perla S.n.c. v. Martin Frischdienst GmbH

31 March 2004

Translation [*] by Joseph Gulino [**]

Translation edited by Francesco G. Mazzota [***]

BASIS OF THE DISPUTE

[1] The complaint presented by Plaintiff Scatolificio La Perla S.n.c.[1] [seller], owned by Stefano and Giuliano Aldrigo, [an Italian company] with offices in Monselice [Italy], is well founded and therefore can be granted.

[2] In 2001, the [seller] sold a very large quantity of pizza boxes to Defendant Martin Frischdienst GmbH [2] [buyer], [a German company] with offices in Mainz-Hechsheim (Germany), coming to agreement upon an amount due of 14,404.60 Euro. The purchaser did not pay the price, even though he did not complain about the conformity of the goods received in the quantity ordered.

[3] In the present case, the [seller] declares that the payment had to be made, through a bank transfer, "30 days after the end of the month of the invoice." The invoice was issued on 10 April 2001, meaning payment was due by 30 May 2001.

[4] The [buyer] did not put forth a defense, as it was in default.

[REASONING OF THE COURT]

[5] First, it must be pointed out that the present controversy concerns a relationship of certain international character. From that comes the need to identify the substantive law applicable to the contract. To this end, it could be thought necessary to turn to rules of private international law on the matter of international sales that, in Italy -- as the Supreme Court has affirmed in a recent decision (Cass. Civ., Sez. Un., 19 June 2000, n. 448, in Corr. giur., 2002, 369 et seq.) -- are the norms provided by the Hague Convention of 15 June 1955, ratified by the law of 4 February 1958, n. 50, and entered into force 1 September 1964, and not those formerly provided for by the Rome Convention of 1980 on the Law Applicable to Contractual Obligations, ratified by the law of 18 December 1984, n. 975, and entered into force 1 April 1991 (on this point, see also Trib. Rimini, 26 November 2002, n. 3095, in Giur. it. 2003, 896 et seq.; Trib. Vigevano, 12 July 2000, n. 405, in Giur. it., 2001, 281 et seq.; Trib. Pavia, 29 December 1999, n. 468, in Corr. giur., 2000, 932 et seq.). Such an affirmation is based on the opinion that the norms of private international law constitute the most suitable (and an expressly created) instrument for the determination of the applicable substantive norms.

[6] An approach different from this international private approach must nevertheless be preferred: one that favors, where possible, the direct application of the norms of substantive law. With reference to this type of case, it is necessary to establish whether the requirements of applicability of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (ratified by the law of 11 December 1985, n. 765, and entered into force 1 January 1988) are met. The preference for the United Nations Convention (that is, a convention of uniform material law, and not of private international law as is sometimes erroneously asserted) over the norms of international private law established by the Hague Convention is first of all given to the fact that the sphere of international application of the United Nations Convention is special as compared to the Hague Convention, since it is more limited. The former, in fact, is applied only to contracts of sale where the internationality depends on the places of business of the contracting parties being in different States, while -- as is noted -- the Hague Convention concerns every type of "international" sales contract. Moreover, the specialization of the United Nations Convention is based on a judgment of the primacy of the norms of uniform material law as compared to those of private international law, regardless of the source (national or international) of the latter [norms of private international law]. The norms of uniform material law cover, by definition, a special field, since they resolve the substantial problem "directly," thereby avoiding the dual approach that always becomes necessary when reference is made to the rules of private international law, and consists first in the identification of the applicable law and then in the application of that law.

[7] Moreover, the requirements for the applicability of the United Nations Convention are met as we have before us a contract which -- according to the Convention -- can be characterized as a contract for the sale of movable goods, the international character of which is deduced -- still according to that which the Convention requires -- from the places of business of the parties (that is, the places wherein a commercial activity characterized by a certain duration, stability and autonomy is carried out) being in different States. In fact, the seller has his place of business in Italy, while the buyer has offices in Germany, and, as such, [the places of business of the parties are] in two Contracting States (the Convention entered into force in Italy and in Germany well before the conclusion of this contract (respectively, 1 January 1988 and 1 January 1991) and must therefore be considered applicable by virtue of Article 1(1)(a), the parties not having made recourse to the possibility of excluding its application, though said right would be exercisable in an implicit manner).

[8] That acknowledged, it is observed that documental proof of the conclusion of the contract of sale exists. In addition, it is not necessary, with respect to the validity, that the act be completed in writing. In fact, even if affirming that Article 4 of the Convention "is not concerned with [(a)] the validity of the contract or of any of its provisions," the question of formal validity is however regulated by Article 11, affirming the general principle of informality (see Swiss Federal Court, 15 September 2000, published on the Internet at the following site: <http://cisgw3.law.pace.edu/cisg/text/000915s1french.html>), whereby the contract for which written proof does not exist is valid also (as an example, the validity of the international sales contract concluded orally is affirmed in OLG [Provincial Court of Appeal] Köln [Germany], 22 February 1994, in Praxis des internationalen Privat- und Verfahrensrechts, 1995, 393 et seq.). The witnesses examined during the trial have also confirmed the delivery of the goods to the buyer; moreover, the buyer has challenged neither the receiving of the goods nor their conformity to the contract.

[9] [Buyer] must therefore be held liable for payment of the agreed-upon price, equivalent to 14,404.60 Euro.

[10] The [seller] has moreover requested the award from the [buyer] of payment of interest and "of the monetary revaluation from the date the debt became due until payment."

[11] It is necessary at this point to determine the moment at which the purchaser would have had to provide the payment of the price. As it turns out, the parties had not contractually agreed to a period of performance of the buyer’s obligation. So as to deal with this eventuality, Article 58 of the United Nations Convention establishes that "if the buyer is not bound to pay the price at any other specific time" -- which, it must be repeated, is not the result in the case examined here --, "he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention." Therefore, this norm establishes the principle of concurrence of the payment and the handing-over of the goods (or of the documents representative of them), which is applied whenever the parties have not agreed otherwise (and where there are no cases like those provided in Article 9(2) of the Convention -- from which one can infer the existence of a different period of payment). This would tend to support that the seller’s debt has become payable with the handing-over of the goods of the sale to the control of the [buyer], that is, by the date of 10 April 2001.

[12] Nevertheless, with invoice no. 246 issued by the seller on 10 April 2001, a later payment date, one corresponding to 30 May 2001, was indicated.[3] Since the invoice was issued concurrently with the shipment of the merchandise to the buyer, and not at a time after its receipt, it must be ruled out that that which was granted to the seller was an additional period of time within the meaning of Article 63 of the Convention. This norm presupposes in fact that the buyer has already been declared in breach, and allows the seller (referring to a power of the seller and not of a duty, it has been asserted also by the Cour d’appel [Court of Appeals] Grenoble [France], 4 February 1999, published on the Internet at the following site: <http://witz.jura.uni-sb.de/CISG/decisions/040299v.htm>), before undertaking the remedies granted by the Convention, to establish another period [of payment], with the aim of being certain of the breach of the opposing party and thus being able to obtain the cancellation of the contract without having to worry about assessing (and subsequently proving) the existence of the conditions indicated by Article 25 of this same Convention (regardless of whether the breach can be qualified as fundamental: the Supreme Court of Austria is of this opinion in the decision of 28 April 2000, in Zeitschrift für Rechtsvergleichung, 2000, 80; LG [District Court] Bielefeld [Germany], 18 January 1991, published on the Internet at the following site: <http://www.cisg-online.ch/cisg/urteile/174.htm>; as well as the Cour d’Appel [Court of Appeals] Grenoble [France], 4 February 1999, published on the Internet at the following site: <http://witz.jura.uni-sb.de/CISG/decisions/040299v.htm>).

[13] In the present case, being that the period was granted before the buyer became in breach, one must think that it has been be a matter of a unilateral integration (or better, modification) of the contractual regulations (that would have otherwise imposed, by virtue of the condition of Article 58, the payment of the price concurrently with the handing-over of the goods), justifiable as favorable to the opposing party. Moreover, if it is true that according to Article 29 of the Convention the modification of the contract requires, as a rule, an agreement of the parties, it seems undeniable that by virtue of the general principle of the Convention according to which venire contra factum proprium [4] is prohibited (for a reference to this principle, see the arbitral award of the ICC arbitral tribunal, no. 8786, in ICC Court of Arbitration Bulletin, 2000, 70 et seq.), the creditor of the price cannot, after having postponed the time for the payment, require that performance [of the contract] be effectuated by the debtor at the moment of the delivery of the goods.

[14] The [buyer] must therefore be considered in arrears from the date of 30 May 2001. No formal request of payment was in fact necessary, as one can deduce clearly from Article 59 of the Convention, since there was a sum in arrears, an automatic effect of the expiration of the payment period (see Handelsgericht [Commercial Court] des Kantons Aargau [Switzerland], 5 November 2002, published on the Internet at the following site: <http://www.cisg-online.ch/cisg/urteile/715.htm>; LG [District Court] Stendal [Germany], 12 October 2000, in Internationales Handelsrecht, 2001, 30; in addition, the following cases exclude the necessity of a further act by the seller in order to declare the buyer in arrears AG [Petty District Court] Viechtach [Germany], 11 April 2002, published on the Internet at the following site: <http://cisgw3.law.pace.edu/cisg/text/020411g1german.html>; Kantonsgericht [District Court] Schaffhausen [Switzerland], 25 February 2002, published on the Internet at the following site: <http://www.cisg-online.ch/cisg/urteile/723.htm>; Landgericht [District Court] Aachen [Germany], 3 April 1990, in Recht der internationalen Wirtschaft, 1990, 491 et seq.).

[15] The right to interest on the unpaid sum is expressly provided by Article 78 of the Convention, which hereby states: "If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74." From the reading of this provision it is easily ascertained that it does not resolve all the problems related to the interest on the sums not paid. In fact, as is often emphasized from doctrine and judicial decisions, the foretold article only forecasts a "general right to interest" (see the arbitral award of the ICC arbitral tribunal, no. [7585 of 1992], in Journal du droit international, 1995, 1015 et seq.; OLG [Provincial Court of Appeal] Koblenz [Germany], 17 September 1993, in Recht der internationalen Wirtschaft, 1993, 938); other issues were not addressed by the drafters of the United Nations Convention, among those the applicable rate of interest (an important issue relative to the decision in this controversy).

[16] The missing criteria on the base of which the rate of interest is to be determined has generated a dispute in doctrine among those who sustain that the question is dealt with by the Convention, even if not expressly (internal gap), and those who, on the other hand, believe that the determination of the rate of interest is a subject excluded from the scope of application of the Convention (external gap). In the first hypothesis, it is possible to make reference to the general principles of the Convention; meanwhile, in the second, it is necessary to make reference to the rules of private international law, in order to identify the applicable substantive law. This Tribunal is inclined, as are the prevailing doctrine and court decisions, toward the second thesis. The measure of interest must be considered a subject excluded from the Convention, since the [Convention’s drafters] were not able to come to any agreement on that point, and therefore intentionally excluded addressing that problem (see also Tribunale di Pavia, [cited above]). It follows that it is not justified, as per Article 7(2), to turn to the general principles on which the Convention is based -- as, on the contrary, some courts have held (see for example RB Koophandel [District Court] Ieper [Belgium], 29 January 2001, published on the Internet at the following site: <http://www.law.kuleuven.ac.be/ipr/eng/cases/2001-01-29.html>; Juzgado Nacional de Primiera Instancia en lo Comercial n. 10 [National Commercial Court of First Instance], Buenos Aires [Argentina], 6 October 1994, published on the Internet at the following site: <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/rargen8.htm>; arbitral decisions of the Arbitral Court of the Vienna [Austria] Federal Chamber of Commerce, nos. 4366 and 4318, in Recht der internationalen Wirtschaft, 1995, 590 et seq.) --, the employment of which would give to this question wide discretionary if not even arbitrary solutions, and therefore solutions contrary to that requirement of the certainty of the law that is an indispensable condition for the development of international commerce.

[17] In order determine the interest rate, one must then make reference to the law applicable by virtue of the norms of the private international law of the forum (in this sense, see LG [District Court] Saarbrücken [Germany], 25 November 2002, in Internationales Handelsrecht, 2003, 70-71; LG [District Court] Stendal [Germany], [12 October] 2000, in Internationales Handelsrecht, 2001, 30 et seq.; LG [District Court] Darmstadt [Germany], 9 May 2000, in Internationales Handelsrecht, 2001, 27 et seq.; OLG [Appellate Court] Stuttgart [Germany], 28 February 2000, in OLG Report-Stuttgart, 2000, 407 et seq.; Trib. Pavia, [cited above]; OLG [Appellate Court] Koblenz [Germany], 18 November 1999, published on the Internet at the following site: <http://www.unilex.info/case.cfm?pid=1&do=case&id=518&step=FullText>; KA [sic, District Court] Zug [Switzerland], 21 October 1999, published on the Internet at the following site: <http://www.unilex.info/case.cfm?pid=1&do=case&id=412&step=FullText>; KG [District Court] Kanton Zug [Switzerland], 16 October 1997, published on the Internet at the following site: <http://www.unilex.info/case.cfm?pid=1&do=case&id=405&step=FullText>). In this case it is necessary therefore to make reference to the already mentioned norms of the Hague Convention of 1955, that refer back to Italian law as the law of the seller (see Article 3(1) of the Hague Convention of 1955). Consequently, it is necessary to apply the legal rate as per Article 1284 of the Italian Civil Code considering obviously the variations that this has undergone over time.

[18] As for the monetary revaluation requested by the [seller], it must be pointed out that Article 78, referring back to Article 74 of the [United Nations] Convention, allows that the award of interest be cumulated with the award of other damages not paid through the determination of the interest by the above-indicated measure (in this regard LG [District Court] Saarbrücken [Germany], 25 November 2002, in Internationales Handelsrecht, 2003, 71; RB Koophandel [District Court] Hasselt [Belgium], 17 June 1998, published on the Internet at the following site: <http://www.law.kuleuven.ac.be/ipr/eng/cases/1998-06-17.html>; HG [Commercial Court] Zürich [Switzerland], 10 July 1996, published on the Internet at the following site: <http://www.unilex.info/case.cfm?pid=1&do=case&id=381&step=FullText>). As for such further damages a precise statement is therefore necessary (for example, affirming that the devaluation was greater than the legal interest rate and that, if the sum of money had been timely received, it would have been invested so as to reduce the impact of the depreciation, or in any case so as to obtain remuneration in excess of the legal rate) and timely proof that, by virtue of the general principle of onus probandi incumbit ei qui dicit,[5] upon which the [United Nations] Convention is based (see Trib. Rimini, cited above; Trib. Vigevano, cited above) -- in addition to the Italian procedural system -- this was incumbent upon the complaining party, which, however, it completely neglected to do. Therefore, the claim must be rejected.

[19] Costs are borne by the losing party and are fixed as to this decision.

[HOLDING]

THE ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE TRIBUNAL OF PADOVA
BRANCH IN ESTE

acting as sole judge, definitively pronouncing in the case no. 40466 of R.g. 2002, filed by Scatolificio La Perla S.n.c., owned by Stefano and Giuliano Aldrigo, with offices in Monselice, (plaintiff) [seller], with complaint served on 16 December 2002 upon Martin Frischdienst GmbH with offices in Mainz-Hechsheim (Germany) (defendant), [buyer], every contrary claim and disregarded exception, therefore has decided:

1) Declares held and sentences the [buyer] to pay to the [seller] the sum of 14,404.60 Euro, increased by interest in the legal measure, as per Article 1284 of the Italian Civil Code, from the date of 30 May 2001 until the time of settlement.

2) Declares held and sentences the [buyer] to reimburse to the [seller] all expenses of trial determined in the sum of 1,430 Euro, of which 600 Euro for court costs and 600 Euro for attorneys' fees and VAT and CPA, as required by law.

Decided at Este, 31 March 2004.

Dr. Alessandro Rizzieri, Judge


FOOTNOTES

* All translations should be verified by cross-checking against the original text. Twenty-eight CISG cases are cited in this opinion. Click here for citations to full text English translations and abstracts or outlines of these cases.

** Joseph Gulino, a graduate of Law and International Affairs, University of Pittsburgh School of Law and International Affairs, alumnus Willem C. Vis International Commercial Arbitration Moot 2003.

*** Francesco G. Mazzota, Dottore in Giurisprudenza, University of Naples "Federico II" (Italy),1993; LL.M. in International & Comparative Law, University of Pittsburgh School of Law, 2000; Associate of the Institute of International Commercial Law of the Pace University School of Law.

1. [Società in nome collecttivo. An Italian non-business partnership. -trans.]

2. [Gesellschaft mit beschränkter Haftung. A German limited liability company. -trans.]

3. [See discussion of this issue in paragraph 3, supra. -trans.]

4. [Setting oneself in contradiction to his own previous conduct. According to this court, the general principle declares that this is forbidden bvy the Convention. -trans.]

5. [The party asserting facts has the burden of provide them. -trans.]

6. [Cassa di Previdenza Avvocati: a payment to the lawyer's pension fund. -trans.]

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated October 25, 2011
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography