Corte di Cassazione, Sezioni unite, sentenza del 06/04/1983 Stahl Eisen Maschinen (SEM) GmbH e Co / Laminatoio di Buttrio SpA
Decision by national courts in the field of European Union law — ECLI:IT:CASS:1983:2431CIV
Date: 1983-04-06
Subject matter: Brussels Convention of 27 September 1968
Origin: Italy

81983IT0406(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An Italian company bought some goods from a German company on the basis of a contract concluded in Italy. The order confirmation contained a term conferring jurisdiction to the German courts. The delivery of the goods was completed by transfer to the carrier in Denmark. Thereafter, it asserted that the quality of the goods was bad and sued the vendor in the Italian court for the termination of the contract and for compensation. The German vendor contested the jurisdiction of the court seised. Since they lost in first instance and on appeal, the German company appealed in cassation.
The Corte di Cassazione (IT) finds that the Italian courts are competent. The mere acceptance of the order confirmation which was drafted by only one of the parties and contained the term conferring jurisdiction, which was not signed by the other party, does not satisfy the formal requirements of Article 17 Brussels Convention. Article 5 (1) Brussels Convention is, however, in this instance to be applied. As for the non-performed obligation, which is the delivery, the place where it should have been performed shall be determined in accordance with Italian law, since it is the law of the place where the contract was concluded (Article 25 preleggi – Italian private international law, old version). According to Article 1510 (2) c c (Codice Civile - Italian civil code) and Article 19 Hague Sales Convention 1964, the obligation to deliver shall be performed at the place where the goods are delivered to the addressee if no other agreement exists. The court, after examining the documents provided, decided that another convention applies and that a sale was agreed by way of “delivery by the transfer to the addressee”. Thus, the Italian courts have jurisdiction.