Data

Date:
27-12-2021
Country:
Italy
Number:
5410/2014
Court:
Tribunale di Foggia
Parties:
SMS Ersanlar Tarim v F.lli Rinaldi s.n.c.

Keywords

EXCLUSION OF CONVENTION (ART. 6 CISG) - PARTIES' CHOICE IN FAVOR OF FORUM AND GOVERNING LAW OF A CONTRACTING STATE (ITALY) - AMOUNTING TO IMPLIED EXCLUSION

Abstract

An Italian seller concluded a contract for the sale of a certain quantity of straw with a Turkish buyer. The goods were to be shipped “CIF Antalya port”. The agreement contained a forum selection clause, designating the Tribunal of Foggia (Italy) as the one competent to solve any dispute between the parties, and a choice-of-law clause, stating that "for any matters that are not expressly resolved by the present contract, the rules of Italian Civil Code shall apply”.

The goods were handed down to the first carrier and shipped to the Antalya port, where they were inspected immediately upon arrival. The buyer complained that the goods were defective, but the seller declined any responsibility. The buyer then brought an action against the seller before the Italian Tribunal asking for a reduction of price and damages due to late delivery of the documents needed to complete customs’ procedure at the destination port. The buyer contended that CISG was the governing law. On its part, the seller raised two main points of defense: first, the valid exclusion of the Convention due to the parties’ indication of Italian domestic law as the law governing the contract; second, the buyer's forfeiture of its right to rely on lack of conformity of the goods, since the defects had been notified three months after delivery.

The Court decided in favor of the seller. In so doing, it preliminarily found that, as the parties had validly excluded the application of the Convention, Italian domestic law had to be applied.

As to the merits, the Court held that the buyer had lost its right to rely on lack of conformity of the goods since the defects had been notified after the time limit in Art. 1511 of the Italian Civil Code had elapsed. Moreover, the Court found that the buyer's claim for damages was unfounded.

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