Case text (English translation)
Queen Mary Case Translation Programme
Tribunale di Pavia [1] 29 dicembre 1999
G.U. [2] Frangipani
Fall.Tessile 21 S.r.l. (Avv. Griffini) v. Ixela S.A. (Avv. con sede in Atene) [3]
Translation [*] by Charles Sant 'Elia [**]
Translation edited by Angela Maria Romito [***]
Procedural history
By its complaint filed on 17 November 1998, Tessile 21 S.r.l [seller] [of Italy] in liquidation (formerly Hertess S.r.l.) brought suit against Ixela S.A [buyer] of Athens, seeking recovery of a claim of ITŁ [Italian Lira] 15,685,060 for the sale of high fashion textiles, the payment of the price of which the [buyer] had not settled in full, notwithstanding repeated requests, even by means of counsel. In particular, the [seller] maintains that goods had been supplied for a price of ITŁ 21,209,860, and deducting the sum already paid, the money debt is the amount indicated above [ITŁ 15,685,060] plus accrued interest.
[Seller] sought judgment against [buyer] asking 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 was entered.
In the default judgment, [seller] was identified as a firm that had been declared bankrupt; the bankrupt [seller] therefore interposed its pleadings by authorization of the Bankruptcy Judge.
After the presentation of the evidence, which was wholly documentary, the case went to decision on the above claims of the [seller].
Grounds of the decision
Since the contractual relationship adduced during the proceedings is an international relationship, the judge must first identify the material law applicable to the relationship. In regard to this issue, the court cannot agree with the [seller's] theory according to which one must have recourse to the Rome Convention of 19 June 1980 in order to determine the applicable law.
Seller's theory cannot be maintained because:
- The conflict norms relating to international sales are not those provided by the Rome Convention; for these norms, one must instead look to the Hague Convention of 15 June 1955 (ratified by Law of 4 February 1958 no. 50, entered into force on 1 September 1964);
- By virtue of either Art. 21 of the Rome Convention or Art. 57 of Law 218/1995, the Hague Convention takes precedence over the conflict rules of the Rome Convention;
- In any event, for recourse to international private law, one must prefer the relevant norms of uniform law created by international conventions which, by reason of their speciality, prevail over conflict rules.
In Italy, the United Nations Convention on Contracts for the International Sale of Goods was in effect, ratified by Law 11 December 1985, no. 765, entered into force on 1 January 1988. It is therefore necessary to determine whether it is applicable.
This Convention applies to contracts for the sale of goods concluded between parties having their [relevant] places of business in different States, on the condition that these States are both Contracting States [States party to the Convention] (Art. 1(1)(a)) or in the event that norms of international private law of the forum lead to the law of a Contracting State (Art. 1(1)(b)). Even though the Convention was not applicable by virtue of Art. 1(1)(a) inasmuch as at the time of the formation of the contract Greece was not a Contracting State (in fact, Greece had ratified the Convention on 1 February 1999), its applicability is not excluded. It is in fact applicable under Italian law by virtue of Art. 1(1)(b), since the norms 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, to the law of a State which at the time of contract formation was a Contracting State.
The [seller] has proved that it has sold the [buyer] the textiles for which it issued invoices numbered 768/97 and 190/98 and that it has a claim for this sale in the amount of ITŁ 15,685,060. In fact there was produced at trial, in addition to the invoice (document 2), an authentic excerpt from the book-keeping records regularly kept in the course of business of [seller], from which the claim is evidenced in the terms indicated by the [seller] (document 8). This document constitutes sufficient proof within the meaning of Art. 2710 Civil Code.
Lastly, there was also produced a copy of a letter and of a fax from the [seller's] attorney seeking payment, which reached the [buyer] in the summer of 1998 (documents 3 and 4). No responses by the latter to this demand followed. The fact that the [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 [seller].
Consequently, pursuant to Articles 53 and 62 of the cited United Nations Convention, [buyer] must be ordered to pay to the [seller] the sum of ITŁ 15,685,060.
As far as interest on the sums not paid, it will be observed that the United Nations Convention 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, it cannot be maintained that this is an issue 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 applicable law, that is to say, in light of [internal] Italian law -- such being the law of the seller, which Art. 3(1) of the Hague Convention of 1955 beckons to. This solution corresponds besides to that adopted by foreign case law (see, for example, Pretore della giurisdizione Locarno-Campagna 16 December 1991 [of Switzerland] [<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 life of the interest, it will be noted that being in default is not required; interest is therefore due from the due date of the invoice to settlement of the debt.
Nothing is due by right of greater damages from monetary devaluation because, 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 damages (Art. 7(2), Art. 79 CISG [4]), has not proved damages incurred because of the missing payment and the Convention clearly distinguishes between interest and damages (see Art. 78).
...omissis...
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the plaintiff, Tessile 21 S.r.l. of Italy, is referred to as
[seller]; the defendant, Ixela S.A. of Greece, is referred to as [buyer]. Also, the
abbreviation ITŁ is used for Italian Lira.
** Charles Sant 'Elia has a B.A. in Political Science and Italian Literature from New York University and studied Political Science at the Universitá degli di Firenze. He received his J.D. from Pace University School of Law and is admitted to the Bar of the States of New York and Connecticut. In addition to editing and translation of cases for the cisgw3 database, he has translated Italian texts on linguistics into English
*** Angela Maria Romito, Associate of the Institute of International Commercial Law, Pace University School of Law. Law degree (cum laude) 1994, University of Bari, Bari, Italy. Admitted to the Bar 1997. LL.M. University of Pittsburgh School of Law 2000-2001. CWES Scholarship. Researcher of European Union Law at the University of Bari. Lawyer at Studio Legale Romito.
1. Tribunale: Regional or District Court, having original jurisdiction over disputes involving amounts exceeding ITŁ 20,000,000. Art. 91 c.p.c.
2. G.U.: Gazzetta Ufficiale della Repubblica Italiana.
3. Attorney Griffini for Plaintiff, seller; Attorneys based in Athens for Defendant, buyer.
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