CISG CASE PRESENTATION

Case identification

DATE OF DECISION: 19981024 (24 October 1988)

JURISDICTION: Italy

TRIBUNAL: Corte di Cassazione [Supreme Court]

JUDGE(S): Granata, Lo Coco

CASE NUMBER/DOCKET NUMBER: 5739

CASE NAME: Kretschmer GmbH & Co. K.G. v. Muratori Enzo

CASE HISTORY: Trib. Modena [affirmed]

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Fruit (cherries)

Case abstract

ITALY: Corte Suprema di Cassazione 24 October 1988 [cited as 3 March 1988]

Case law on UNCITRAL texts (CLOUT) abstract no. 8

Reproduced with permission from UNCITRAL

An Italian exporter had concluded a contract for the sale of a cargo of fruit with a German importer. The court, noting that Italy's ratification of CISG according to Article 99(6) had taken effect only after its denunciation of the 1964 Hague Convention relating to a Uniform Law on the International Sale of Goods, i.e. as from 1 January 1988, held that CISG did not apply in the case at hand since the contract had been concluded before that date.

Editorial remarks

EDITOR: Albert H. Kritzer

Applicability/Relations with other conventions. The sole reference to the CISG in this opinion reads as follows:

"Given the period at which the contract which gives rise to the obligations the subject of these proceedings was made, the United Nations Convention on Contracts for the International Sale of Goods has no bearing on this dispute, having been adopted at Vienna on 11 April 1980 and having been ratified and executed by Act 765 of 11 December 1985. . . ."

"It is opportune to recall in that regard that, by its Article 100, the Convention applies to contracts entered into as the result of an offer made after the entry into force of the Convention which, as has just been pointed out, is effective from 1 January 1988, in accordance with Article 99 which specifies that in the case of States bound by the Hague Convention ratifications will enter into force only on the date on which the denunciations requested by the aforesaid States in respect of those Conventions have come into force. This form of coordination was made necessary because the Convention, as stated in its Article 90 does not prevail over an international agreement which has been concluded or is to be concluded and which contains provisions relating to matters regulated by the Convention."

Jurisdiction/Payment, place of. At issue in this case was jurisdiction of the court. ULIS Article 59 was deemed relevant in this respect. ULIS Article 59 is similar to CISG Article 57(1)(a). ULIS Article 59 states: "The buyer shall pay the price to the seller at the seller's place of business . . ." CISG Article 57(1)(a) states: "If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller at the seller's place of business . . ." The court stated that "the provisions of Article 59 of [ULIS] must be applied . . . The result is that, in this case, the establishing of the plaintiff's domicile in Italy suffices to give the Italian court jurisdiction with respect to the alleged breach asserted against the foreign buyer."

Citations to other abstracts, case text and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION