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Italian jurisdiction - contract of sale - modification of the place of delivery

Tribunal of Venice
1st Civil Chamber
Judgment of 30 January, 2007 - No. 2572
 

According to art. 5 of Bruxelles Convention of September 27, 1968, Italian jurisdiction does not exists, if the parties have provided that the price of the goods should be paid abroad. 

The modification of the place of payment by only one of the parties is irrelevant for the purpose of asserting jurisdiction, if it does not result that the above modification has been agreed upon, or approved by the other. 

The exclusion of bankruptcy proceedings from the field of the application of the above Convention  does not apply in the case of an ordinary proceeding governed by the rules of the code of civil
procedure, even though the only peculiarity that the claimant is a company under judicial liquidation.
 

* * * * 

An Italian company, latter admitted to the procedure of administrative liquidation, had supplied some goods to a German company.
In the general conditions of purchase of the German company, accepted by the Italian company, it was laid down that the payment had to be made in Germany at the bank account of the Italian company.
Nevertheless, since the German company had not made the payment, the commissioner, who had taken over the company in the meantime, asked that the payment be done on a bank account in Italy, and subsequently sued the German company before the Court of Venice, asking that the company would be condemned to pay the price of the goods.
The court has declared the lack of jurisdiction of Italian courts, because the place agreed upon for the payment was not in Italy, but in Germany, and the change of the place of payment, subsequently made by the commissioner, once he had ascertained the lack of payment of the buyer, could not be considered valid.
Such change was ineffective, as it had been made without the consent of the counterpart.
The Bruxelles Convention of 1968 has been replaced by the EC Regulation no. 44/2001, concerning international jurisdiction and the recognition and the execution of judgments in civil and commercial matters.
Also the Regulation contains an analogous provision according to which, a defendant can be sued before the judge of the country where the obligation that is the object of the claim was or should have been performed.
Specifically, in the case of non payment of the price, it will be necessary to refer to the place agreed upon in the contract.
Nevertheless, the Regulation contains an assumption, whereby, in the case of sale of goods, all the obligations arising from the contract are considered to be executed in the place where, according to the contract, the goods have been, or should have been delivered.
Nevertheless, this assumption is not an absolute one, because the Regulation considers the possibility of a different agreement between the parties.
If the parties have expressly provided in the agreement that the payment of the price should be made abroad, and the payment is not made, a foreign buyer cannot be sued before the Italian courts, even if, later on, the same has been asked to execute the payment at the domicile of the seller in Italy.
On the contrary, if the place for the payment has not been
expressly agreed upon between the parties, it will be necessary to
refer to the aforementioned assumption, that, according to the first
decisions issued by the Court of Cassation, must be interpreted in
the sense that, the place of delivery of goods to be supplied abroad,
is the place where the goods have been handed over to the first
carrier.

 

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