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CISG-online number
5184
Case name
ALAKart Kft. v. Pizzul S.r.l.
Jurisdiction
Italy
Court
Tribunale di Trieste (District Court Trieste)
Chamber
Sezione Civile (Section for civil matters)
Judge
Dott. Arturo Picciotto (Sole judge)
Date of decision
17 June 2019
Case nr./docket nr.
2640/2016
Claimant 1
Respondent 1
Seller 1
Buyer 1
Category of goods
66: Non-metallic mineral manufactures, not elsewhere specified
Goods as per contract
252 precious stone columns type "Nero assoluto"
Price
56'673.00 EUR (Euro)
CISG applicable
yes, Art. 1(1)(a)
CISG applied
yes
(Domestic) law applied in addition
Italian law
Key CISG provisions interpreted and applied
Art. 7(2) (burden of proof under the CISG); Art. 35(2)(b)
Key CISG provisions interpreted
Art. 79(1)
Key CISG provisions applied
Art. 35(2)(a); Art. 35(2)(c)
Non-provision-specific issues addressed
Burden of proof
This decision cites the following other CISG-online cases 10
CLOUT number
1907
Full text, translation and abstract of decision 3
by Till Maier-Lohmann
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. This should be interpreted as an alternative reasoning only, since the Court did not find the goods to have been non-conforming under Art. 35 CISG at the relevant time of the passing of the risk (Art. 36 CISG) and Art. 79(1) CISG presupposes a breach of contract (“a party is not liable for a failure to perform any of his obligations […]”). Only assuming the seller breached the contract by delivering non-conforming goods would Art. 79 CISG be of relevance.