Tribunale di Trieste rules on the burden of proof under Art. 35(2)(b) CISG and on Art. 79(1) CISG

The Italian Tribunale di Trieste (District Court Trieste) rendered a decision on 17 June 2019 that has been added to CISG-online combined with an English translation of the text.

In ALAKart Kft. v. Pizzul S.r.l. the Court assessed whether black stones were fit for their particular purpose under Art. 35(2)(b) CISG and whether Art. 79(1) CISG shields the seller against liability.

The Hungarian company ALAKart Kft. bought black stones from the Italian seller Pizzul s.r.l. with the communicated purpose of reselling them to a Hungarian customer. The stones “nero assoluto” were intended to be used in road bollards on a square in front of the Budapest Parliament. After having been installed there, the customer complained of cracks on the stones’ surfaces. When the seller denied all responsibility, the buyer declared the contract avoided and claimed damages and the repayment of the price.

The Tribunale di Trieste highlighted that the seller, albeit aware of the use of the goods on the square, was not aware of the particular use as in the stone being locked by a fixed pole and not aware of the glue used by the buyer to fix the stone. Since the cracks could be ascribed to one of these two reasons and the seller was not informed of this particular use, the goods were not non-conforming under Art. 35(2)(b) CISG.

In this regard, the Court also set forth the opinion shared by many (but not all) courts and scholars that the allocation of the burden of proof is a matter governed by the CISG, while explicitly differentiating the kinds of admissible proof that are governed exclusively by the applicable domestic law (i.e. the lex fori).

Lastly, the Court referred to Art. 79(1) CISG to argue that the damage incurred was due to an impediment beyond the seller’s control. To this end, the scholarly opinion is referenced that Art. 79(1) CISG should be interpreted broader than encompassing only force majeure and impossibility.