Larry_A_DiMatteo_-_International_Sales_Law_A_Global_Challenge-Cambridge_University_Press_2014

Damages also encompass the out-of-court legal costs the seller has sustained in enforcing his claim to payment of the purchase price.158 In contrast, following decisions from German courts the costs for debt-collecting agencies cannot be claimed if such services were requested prior to consulting an attorney.159 The creditor thereby breaches his duty under Article 77 to mitigate loss,160 which is to be examined ex officio by the court.161

V. Interest

Article 78 stipulates that the seller is entitled to claim interest on sums for which the other party is in arrears. This right to claim interest exists even without the specific requirements of a delayed payment according to national law; the sums only have to fall due for payment.162 The CISG does not fix the rate of interest. German courts mainly refer to the statutory interest rate, which is applicable according to the national law that has been determined via private international law.163 Some courts apply the rate of interest that is applicable at the creditor’s place of business,164 the debtor’s place of business165 or on the currency in which the purchase price is to be paid.166 Under Article 78, the creditor can also seek damages under Article 74 for any interest-related damages that go beyond a claim under Article 78. It is therefore conceivable that, for example, the

158OLG Hamm, November 12, 2001, 13 U 102/01, CISG-online no. 1430; LG Coburg, December 12, 2006, 22 O 38/06, CISG-online no. 1447; OLG Dusseldorf,¨ July 22, 2004, I-6 U 210/03, CISG-online no. 916; LG Berlin, March 21, 2003, 103 O 213/02, CISG-online no. 785; AG Freiburg, July 6, 2007, 4 C 4003/06 CISG-online no. 1596; LG Krefeld, April 28, 1993, 11 O 210/92, CISG-online no. 101; LG Berlin, September 30, 1992, 99 O 123/92, CISG-online no. 70; OLG Dusseldorf,¨ July 11, 1996, 6 U 152/95, CISG-online no. 201; in the absence of a breach of contract not decided by AG Charlottenburg, May 4, 1994, 7b C 34/94, CISG-online no. 386. See also OLG Hamm, April 2, 2009, 28 U 107/08, CISG-online no. 1978. Sections 91 et seq. of the German Code of Civil Procedure make the losing party liable for the other party’s legal expenses, which is why no reference to Article 74 is necessary.

159AG Berlin-Tiergarten, March 13, 1997, 2 C 22/97, CISG-online no. 412; LG Dusseldorf,¨ August 25, 1994, 31 O 27/92, CISG-online no. 451; see also LG Frankfurt a. M., September 16, 1991, 3/11 O 3/91, CISG-online no. 26 (engaging a debt collection agency is appropriate only if the collection agency can take steps superior to those of the creditor); LG Berlin, October 6, 1992, 103 O 70/92, CISG-online no. 173 (costs of debt collection).

160LG Zwickau, March 19, 1999, 3 HKO 67/98, CISG-online no. 519; AG Berlin-Tiergarten, March 13, 1997, 2 C 22/97, CISG-online no. 412; LG Dusseldorf,¨ August 25, 1994, 31 O 27/92, CISG-online no. 451.

161BGH, March 24, 1999, VIII ZR 121/98, CISG-online no. 396.

162LG Aachen, July 20, 1995, 41 O 111/95, CISG-online no. 169; LG Frankfurt a.M., September 16, 1991, 3/11 O 3/91, CISG-online no. 26. See also OLG Hamburg, January 25, 2008, 12 U 39/00, CISG-online no. 1681.

163LG Coburg, December 12, 2006, 22 O 38/06, CISG-online no. 1447; OLG Dusseldorf,¨ July 22, 2004, I-6 U 210/03, CISG-online no. 916; OLG Karlsruhe, July 20, 2004, 17 U 136/03, CISG-online no. 858; LG Monchengladbach,¨ July 15, 2003, 7 O 221/02, CISG-online no. 813; OLG Koln,¨ October 14, 2002, 16 U 77/01, CISG-online no. 709; OLG Karlsruhe, December 19, 2002, 19 U 8/02, CISG-online no. 817; OLG Rostock, October 10, 2001, 6 U 126/00, CISG-online no. 671; LG Stendal, October 12, 2000, 22 S 234/99, CISG-online no. 592; LG Darmstadt, May 9, 2000, 10 O 72/00, CISG-online no. 560. See also, LG Gottingen,¨ September 20, 2002, 7 O 43/01, CISG-online no. 655; LG Munchen,¨ February 27, 2002, 5 HKO 3936/00, CISG-online no. 654.

164LG Heidelberg, November 2, 2005, 3 O 169/04, CISG-online no. 1416; LG Bamberg, April 13, 2005, 2 O 340/00, CISG-online no. 1402; LG Berlin, March 21, 2003, 103 O 213/02, CISG-online no. 785.

165LG Frankfurt a.M., September 16, 1991, 3/11 O 3/91, CISG-online no. 26.

166OLG Rostock, October 10, 2001, 6 U 126/00, CISG-online no. 671.

creditor can demand such interest he has to pay to draw on a bank credit.167 However, Article 74 requires actual proof of the damages, which is not necessary under Article 78.168

VI. Mitigation and Preservation

Article 77 provides that the party who relies on a breach of contract has a duty to mitigate his loss. Mitigation of loss is considered ex officio and not, for instance, after a plea by a party.169 The injured party cannot claim damages to the extent to which the damage could have been avoided through appropriate measures of prevention and mitigation. If the buyer recognizes the non-conformity of the goods, under some circumstances, he or she is required to cease using them.170 In addition, the request to remedy the nonconformity should be made to the debtor before a third party is approached.171 Article 77 is of particular importance with regard to the defense against subsequent losses. The duty of mitigation may require the injured party to conclude a cover transaction, particularly with respect to an already avoided contract.172 However, if the contract has not yet been avoided, there is no obligation to conclude a cover transaction.173 It has to be noted, though, that a cover transaction does not fall within the scope of appropriate measures covered by Article 74 if a price fluctuation was not foreseeable. In such cases, the objection cannot be raised against the buyer that following the avoidance of the contract he should have purchased the entire amount elsewhere.174 The debtor possesses the burden of proving that the creditor failed to prevent or mitigate his losses.175

167LG Munchen,¨ February 20, 2002, 10 O 5423/01, CISG-online no. 712; AG Koblenz, November 12, 1996, 16 C 1056/96, CISG-online no. 400; AG Bottrop, June 25, 1996, 12 C 177/96, CISG-online no. 534.

168LG Darmstadt, May 9, 2000, 10 O 72/00, CISG-online no. 560; OLG Dusseldorf,¨ April 24, 1997, 6 U 87/96, CISG-online no. 385; AG Bottrop, June 25, 1996, 12 C 177/96, CISG-online no. 534; AG Koblenz, November 12, 1996, 16 C 1056/96, CISG-online no. 400; OLG Hamm, February 8, 1995, 11 U 206/93, CISG-online no. 141; AG Alsfeld, May 12, 1995, 31 C 534/94, CISG-online no. 170; OLG Celle, May 24, 1995, 20 U 76/94, CISG-online no. 152; OLG Dusseldorf,¨ January 14, 1994, 17 U 146/93, CISG-online no. 119 (court referred to German Code of Civil Procedure Section 287 to estimate the interest damage); LG Hamburg, September 26, 1990, 12 O 153/92, CISG-online no. 21 (estimation of damages under Article 78 in conjunction with Article 74).

169BGH, March 24, 1999, VIII ZR 121/98, CISG-online no. 396.

170Id.

171LG Darmstadt, May 9, 2000, 10 O 72/00, CISG-online no. 560.

172OLG Celle, September 2, 1998, 3 U 246/97, CISG-online no. 506 (first instance LG Gottingen,¨ July 31, 1997, 3 O 198/96, CISG-online no. 564). See also LG Berlin, September 15, 1994, 52 S 247/94, CISG-online no. 399. Cf. also OLG Celle, September 2, 1998, 3 U 246/97, CISG-online no. 506 (buyer who has purchased goods from a seller abroad cannot limit its search for replacement goods to domestic suppliers).

173OLG Braunschweig, October 28, 1999, 2 U 27/99, CISG-online no. 510 (considering an exception if the time between performance and avoidance is so great that it is to be reasonably expected that the seller intends to seek performance or a secondary claim). See also OLG Dusseldorf,¨ January 14, 1994, 17 U 146/93, CISG-online no. 119; OLG Dusseldorf,¨ September 13, 1996, 17 U 18/96, CISG-online no. 407 (exception exists when the costs of repairs are considerably more expensive than the cost of a cover transaction); LG Bielefeld, January 18, 1991, 15 O 201/90, CISG-online no. 174. Cf. also OLG Hamm, September 22, 1992, 19 U 97/91, CISG-online no. 57.

174OLG Frankfurt a.M., March 24, 2009, 5 U 214/05, CISG-online no. 2165.

175OLG Celle, September 2, 1998, 3 U 246/97, CISG-online no. 506; AG Munchen,¨ June 23, 1995, 271 C 18968/94, CISG-online no. 368.

Articles 85 through 88 express the general principle that each party is obliged to cooperate with the other party. In contrast to Article 77, Articles 85 through 88 establish genuine legal obligations, which can lead to claims for damages if breached. If the other party refuses to take back the goods, the party who is bound to preserve the goods may sell them under Article 88(1).176 According to Article 88(2), a duty to sell the goods may arise if they are, for example, subject to rapid deterioration, yet such a rapid deterioration in this context cannot arise if, for example, the goods can be frozen and thereby preserved.177 An obligation to sell does not arise due to rapidly dropping market prices.178

VII. Excuse (Impediment)

According to Article 79, a party is not liable for a failure to perform any of his obligations if he or she proves that the failure was due to an impediment beyond his or her control and that he or she could not reasonably be expected to have taken it into account at the time of the conclusion of contract or to have avoided or overcome it or its consequences. Following case law on this matter, an objective test is applied in which the reasonable person standard is used to determine if the party claiming an excuse reasonably reacted to the impediment under the same circumstances.179 Article 79 is only applicable to claims for damages (Article 79(5)); claims to performance are not affected.180

Within the scope of Article 79, impediments that prevent performance of an obligation are only objective circumstances that are beyond the debtor’s control. The contrast is formed by personal, that is, subjective circumstances, which are particularly broad in scope, thus reducing the number of potential impediments that fall under Article 79.181 German courts have recognized a number of subjective events that do not qualify as an impediment, including financial capabilities, the risk of timely procurement,182 stockpiling and flawlessness of the goods, as well as the risks associated with personnel and organization.183 For example, it was ruled that the fact that the vehicle sold was stolen and the seller could therefore not transfer ownership does not constitute an impediment. In this respect the seller carries the risk of procurement. Even if the seller – through repeated enquires with the police and vehicle registration office – maintains that he or she has done everything in order to adhere to the contractual obligations, he or she is precluded from claiming an impediment under Article 79.184 On the basis of the seller’s

176LG Koln,¨ December 5, 2006, 85 O 200/05, CISG-online no. 1440.

177OLG Braunschweig, October 28, 1999, 2 U 27/99, CISG-online no. 510.

178Id.

179OLG Zweibrucken,¨ March 31, 1998, 8 O 1995/95, CISG-online no. 481.

180BGH, November 27, 2007, X ZR 111/04, CISG-online no. 1617.

181OLG Munchen,¨ March 5, 2008, 7 U 4969/06, CISG-online no. 1686.

182This is at least applicable to generic goods, see BGH, March 24, 1999, VIII ZR 121/98, CISG-online no. 396; OLG Hamburg, February 28, 1997, 1 U 167/95, CISG-online no. 261; OLG Zweibrucken,¨ February 2, 2004, 7 U 4/03, CISG-online no. 877; OLG Hamburg, July 4, 1997, 1 U 143/95 and 410 O 21/95, CISG-online no. 1299. See also OLG Hamburg, February 28, 1997, 1 U 167/95, CISG-online no. 261 (triplication of market price may be commercially reasonable in speculative transactions).

183With respect to this comprehensive list, see OLG Munchen,¨ March 5, 2008, 7 U 4969/06, CISG-online no. 1686, albeit in obiter dictum.

184OLG Munchen,¨ March 5, 2008, 7 U 4969/06, CISG-online no. 1686 (thereby taking into account that the circumstances surrounding the acquisition of the vehicle that was subject of the dispute should have raised doubts regarding the original seller’s power of disposition). With regard to the obligation to transfer

procurement risk, he or she as a retailer cannot draw upon circumstances that have arisen within the supplier’s sphere of control.185 The same applies to the timely delivery by previous suppliers.186

Article 79 is applicable to all conceivable cases and forms of nonperformance that give rise to liability. The provision therefore especially applies in cases of delivery of nonconforming goods.187 However, as the seller bears the risk of ensuring conformity, he or she will seldom be able to draw upon Article 79 CISG. Yet in a few cases it has been ruled that if a seller has ordered goods from a reliable supplier and the seller did not discover the non-conformity despite undertaking a careful examination, then the seller can be excused under Article 79.188 However, these decisions have been subject to considerable criticism as the criteria give rise to the risk that the courts could understand Article 79 and its exemption from strict liability as a fault-based liability.189

Article 79(2) regulates the exemption from liability in the event that the nonperformance is due to nonperformance by a third party. The impediment in such cases must be beyond the control of either the debtor or the third party.190 Under the CISG, it is the seller who bears the risk of procurement,191 which is why typical suppliers are not considered to be third parties within the scope of Article 79(2).192

VIII. Concluding Remarks

In 1996, Louis and Patrick Del Duca admonished practicing lawyers to “Learn the CISG, whether you like it or not.”193 Every German lawyer involved with cross-border sales contracts must have a working knowledge of the CISG. In light of the indisputable advantages of UN sales law as opposed to the German BGB/HGB in some circumstances,

property, see also LG Freiburg, August 22, 2002, 8 O 75/02, CISG-online no. 711; OLG Dresden, March 21, 2007, 9 U 1218/06, CISG-online no. 1626.

185BGH, March 24, 1999, VIII ZR 121/98, CISG-online no. 396; LG Ellwangen, August 21, 1995, 1 KfH O 32/95, CISG-online 279. See also LG Hamburg, October 23, 1995, 419 O 85/95, CISG-online no. 395 (Article 79 excuse could arise if the seller concludes a cover transaction, but the supplier does not deliver on time); OLG Zweibrucken,¨ March 31, 1998, 8 O 1995/95, CISG-online no. 481 (limited exception to the procurement obligation is to be made for production risks).

186BGH, March 24, 1999, VIII ZR 121/98, CISG-online Nr 481.

187BGH, January 9, 2002, VII ZR 304/00, CISG-online no. 651; LG Koln,¨ November 16, 1995, 5 O 189/94, CISG-online no. 265; OLG Zweibrucken,¨ March 31, 1998, 8 O 1995/95, CISG-online no. 481. Under Anglo-American law, a seller who has failed to deliver conforming goods is not entitled to claim an Article 79 excuse, see Barry Nicholas, “Prerequisites and extent of liability for breach of contract under the U.N. Convention,” in Einheitliches Kaufrecht und nationales Obligationenrecht (ed. P. Schlechtriem) (Baden-Baden: Nomos Verlag, 1987), 283, 287.

188BGH, January 9, 2002, VII ZR 304/00, CISG-online no. 651; LG Koln,¨ November 16, 1995, 5 O 189/94, CISG-online no. 265.

189See Elisabeth Sauthoff, Die Annaherung¨ der Schadensersatzhaftung fur¨ Lieferung mangelhafter Ware an das UN-Kaufrecht (Berlin: Duncker & Humblot, 2007), 61.

190BGH, March 24, 1999, VIII ZR 121/98, CISG-online no. 396.

191Id.

192OLG Zweibrucken,¨ March 31, 1998, 8 O 1995/95, CISG-online no. 481; OLG Hamburg, February 28, 1997, 1 U 167/95, CISG-online no. 261; Schiedsgericht der Handelskammer Hamburg, March 21, 1996, CISG-online no. 187.

193Louis F. Del Duca and Patrick Del Duca, “Practice Under the Convention on International Sale of Goods (CISG): A Primer for Attorneys and International Traders (Part II),” 29 Uniform Commercial Code L. J. 99, 157 (1996).

not knowing or taking advantage of these provisions may be grounds for malpractice. Furthermore, as in particular situations the exclusion of UN sales law in favor of the BGB/HGB can be viewed as a case of professional negligence on the part of the attorney, it is to be assumed that the importance of UN sales law will continue to grow, especially as UN sales law is now taught at every German university and in so doing the fear of the unknown is removed from the coming generation.

Moreover, in some cases the CISG leads to legal results that cannot be reached under the BGB or HGB, even if they were modified or deviated from by a contractual agreement. From the buyer’s perspective one first has to emphasize the concept of strict liability, which is especially important if the seller’s contractual partner is only an intermediate dealer. The BGB and HGB do not apply the concept of strict liability but stipulate a fault-based liability for damages. Under German law a seller is only liable for damages if he or she has deliberately or negligently breached his or her contractual obligations. An intermediate dealer – often encountered in today’s global business environment – is not at fault if he or she sells nonconforming goods whose non-conformity could not have been discovered with the usual examination. Thus, in such situations, the buyer is on the basis of the BGB and HGB not entitled to damages. In this context it has to be noted that according to German law, strict liability clauses stipulated in general terms and conditions of the contract are void.194

Furthermore, a seller of goods ultimately be sold to a consumer, can, through choosing the CISG, avoid the so-called “recourse of the entrepreneur.” Under the BGB and HGB, the buyer (who is liable vis-a`-vis the consumer) can more easily take recourse against the seller. In such cases, German law places the seller at a disadvantage as it – in contrast to UN sales law – (1) provides that the buyer’s legitimate expectations stipulate whether or not the goods are in conformity with the contract, (2) places for a given time period the burden of proof on the seller to show that the goods were conforming, and (3) can lead to a limitation period of up to five years.195 All of these disadvantages are mandatory in their application and cannot be deviated from by contract.

Finally, it has to be noted that the CISG is an international treaty. In turn, this means that the provisions of UN sales law cannot be avoided by national laws and court orders based thereupon. For example, if a national court rules that on the basis of national insolvency law so-called “critical suppliers” of a buyer (who has applied for creditor protection) must fulfill their contracts with the buyer, may a supplier nevertheless exercise his right to a right of stoppage under Article 71? The answer is to be found by looking at the hierarchy of norms and the position of the CISG above national law. National rules that would, for example, undermine the right of stoppage under Article 71 are not, at least where the application of UN Sales law is concerned, applicable or to be followed. In one case, a German seller, who had already delivered the goods EXW (Incoterms 2000), was informed that the buyer was in severe financial difficulties and that the buyer had filed for creditor protection. As at that time the goods had not been handed over to the buyer by the carrier yet, the seller drew on Article 71(2), thereby preventing the handing over of the goods. In accordance with Article 71(3), the seller also immediately informed the buyer and exerted the right of stoppage. The buyer claimed that according

194Cf. BGH, 59 Neue Juristische Wochenschrift 47, 49 et. seq. (2006) with respect to defects in title.

195For more detail and with further reasoning, see Burghard Piltz, “Anmerkung zum Urteil des EuGH C-65/09 und C-87/09,” 22 Europaische¨ Zeitschrift fur¨ Wirtschaftsrecht 636 et seq. (2011).

to the court decision the seller was obliged to release the goods. In turn, the seller argued that the court decision neglected his Article 71 rights. The seller ultimately received a settlement of 70 percent of the purchase price and in return released the goods. As the legal arguments and basis imparted by UN sales law, it is clear that this result could not have been achieved on the basis of a national law, even if the parties had made further contractual agreements. Before one relinquishes the advantages of UN sales law in favor of the often more familiar national laws too hastily, one should therefore first give careful consideration and justification before making such a decision.

the CISG as the law of Italy. Nonetheless, the tribunal determined that the CISG did not qualify as “Italian law” and that when the parties chose “Italian law” they meant to exclude the CISG under CISG Article 6. In fact, the CISG is “Italian law” but in other cases, professio juris, although in favor of the law of a certain contracting State, could nevertheless be interpreted as an opt-out clause (CISG Article 8), especially if the choice of law provision is more specific by stating the choice as the “Italian civil code” or “Italian law exclusively”4 rather than simply “Italian law.”5

When the CISG was recognized as the applicable law of Italy, the early cases nevertheless tended to base their decisions on the Italian Civil Code or another national law.6 Judges in the earlier decisions believed a well-reasoned case required referencing “traditional” Italian law, even if the applicability of the CISG was unquestioned. However, more recent cases have shown a trend away from such homeward-trend reasoning. Largely due to the expansion of EU law,7 Italian judges have increasingly become receptive to transnational norms, principles, and values, as well as becoming more confident in using case law. Recent judgments have no longer felt the need to write obiters (dicta) based on the Italian civil code or other domestic provisions when the CISG is applicable law.8

There is a further interpretive methodological decision to be made. Italian judges often use Italian translations of the official text. Italian is not one of the official languages

(1990); Jayme in Commentary on the International Sales Law (ed. Bianca and Bonell) (Milan: Giuffre,´ 1987), 32.

4Florence Court of Arbitration, on April 19, 1994, Diritto del commercio internazionale 861 (1994), available at http://cisgw3.law.pace.edu/cases/940419i3.html.

5In this latter sense, though obiter, see Tribunale di Padova, January 11, 2005, Rivista di diritto internazionale privato e processuale 791 (2005), available at http://cisgw3.law.pace.edu/cases/050111i3.html (choice of regulations of the International Chamber of Commerce in Paris is not an implied exclusion of the CISG, given that ICC arbitration rules cannot be considered a “choice of law”). See Ferrari, La vendita internazionale, 2nd ed. (Padua: Cedam, 2006), 214 (“The parties’ choice does not amount to an implied exclusion of the Convention”).

6Pretura di Parma-Fidenza, November 24, 1989, in Diritto del commercio internazionale 441 (1995), available at http://cisgw3.law.pace.edu/cases/891124i3.html (“We focus our attention on the seller’s partial performance. The seller’s non-performance is a fundamental breach of contract according to Article 49

(1)(a)”); Tribunale di Padova, January 11, 2005; Corte di Cassazione, June 9, 1995, no. 6499, Giustizia civile I 2065 (1996), available at http://cisgw3.law.pace.edu/cases/950609i3.html (“The issues converge in this sense under either the criteria followed in the application of the rules of the Civil code or the criteria expounded in Article 3 of the CISG”); Pretura di Torino, January 30, 1997, Giurisprudenza italiana 982 (1998), available at http://CISGw3.law.pace.edu/cases/970130i3.html (The court, after claiming the applicability of the CISG, in dealing with the burden of proof, bases its arguments tout court on Article 2697 of Italian Civil Code). See also Bundesgerichtshof, January 9, 2002, Neue Juristische Wochenschrift

1651 (2002), Recht der internationalen Wirtschaft 396 (2002), Wertpapier Mitteilungen 1022 (2002),

Zeitschrift fur¨ Insolvenzpraxis 672 (2002), available at http://cisgw3.law.pace.edu/cases/020109g1.html. See also Perales Viscasillas, “Battle of the Forms and the Burden of Proof: An Analysis of BGH 9 January 2002,” Vindobona J. for Int’l Commercial L. & Arbitration 217 (2002).

7“Bin, Per un dialogo con il futuro legislatore dell’attuazione: ripensare l’intera disciplina della non conformita` dei beni nella vendita alla luce della direttiva comunitaria,” Contratto e impresa/Europa 403 (2000).

8Cf. Corte di Appello di Milano, December 11, 1998, Rivista di diritto internazionale privato e processuale

112 (1999), available at http://cisgw3.law.pace.edu/cases/981211i3.html. However, compare, Corte di Cassazione, December 14, 1999, no. 895, Giustizia civile I 2333 (2000), available at http://cisgw3.law. pace.edu/cases/991214i3.html.

of the CISG, therefore to refer to an informal translation of the text implies a violation of CISG Article 101(2). Use of unofficial texts also undermines the search for autonomous interpretations under CISG Article 7(1).9 European jurists know the difficulties of “trans” or “meta” linguistics because of their need to apply EU law.10 The interpretation of a text in a nonauthentic version is misleading. In practice, the English version has prevailed, being considered as the text par excellence of the CISG. There is therefore no reason to use versions other than the English one, even though they are official and better suited to native speakers. Conversely, the use of nonauthentic versions constitutes a violation of the CISG.

II. Sources of International Sales Law

Despite the revocation of the Hague Sales Conventions of 1964, the Hague Convention of June 15, 1955 “on the law applicable to the international sales of goods”11 remains in force12 and prevails over EC Regulation 593/2008 (“on the law applicable to contractual obligations”), in accordance with Article 25,13 and the Rome Convention of June 19, 1980, as per Article 21 (“on the law applicable to contractual obligations”).14 It is quite strange that four judgments by the Italian Supreme Court in plenary session have made no comment on it, and have ruled on jurisdiction without even mentioning the Hague Convention of 1955.15

In any case, the normative framework summarized here raises a fundamental problem of international private law. In the Italian system, there are two conventions on sales that

9See Tribunale di Padova, January 11, 2005.

10See Marietta, “L’interpretazione dei trattati plurilingue nella prassi delle Comunita` Europee,” Rivista di diritto europeo 230 (1985).

11See Cassoni, “La compravendita nelle convenzioni e nel diritto internazionale privato italiano,” Rivista di diritto internazionale privato e processuale 429 (1982).

12The second Hague Convention “on the applicable law to the contracts of international sale of goods” was adopted on October 31, 1985, but it never entered into force due to the fact that the minimum number for the deposit of ratifications (five, as per Article 21) was not been reached; the version of the Convention which is in force is therefore the one of 1955; see Boschiero, “Le convenzioni internazionali,” 214 et seq. and 251 et seq.; Padovini, “La vendita internazionale dalle Convenzioni dell’Aja alle Convenzioni di Vienna,” in Rivista di diritto internazionale privato e processuale 47 (1987); Luminoso, La compravendita, 7th ed. (Turin: Giappichelli, 2011), 498–500.

13In particular, there is no inconsistency with Reg. EC 593/2008 Article 25(2). See Frignani-Torsello, Il contratto internazionale, 2nd ed. (Padua: Cedam: Padova 2010), 438 n. 7.

14A fortiori the Hague Convention of 1955, which, for now, has not yet been replaced by the one of 1985, prevails over Statute no. 218 of the May 31, 1995 (“Reform of the Italian system of international private law”), where Article 57 refers to the Rome Convention of 1980 (Reg. EC 593/2008). The Rome Convention of June 19, 1980, ratified with Statute no. 975 of December 18, 1984, entered into force on April 1, 1991, was transposed into EU law with Reg. EC 593/2008, where Article 24(1), restricts, without excluding, its effectiveness; both the Rome Convention of 1980, though within the limits of Reg. EC 593/2008 Article 24(1), and this latter regulation is still applicable outside the subjective and objective sphere of the Hague Convention of 1955, Article 4(1)(a) and (c), Reg. EC 593/2008, but obviously under the condition that it is not excluded by the CISG.

15Corte di Cassazione, February 1, 1999, no. 6, available at http://cisgw3.law.pace.edu/cases/990201i3.html; id., December 14, 1999, no. 895; id., June 6, 2002, no. 8224, available at http://cisgw3.law.pace.edu/cases/ 020606i3.html; id., June 20, 2007, no. 14300, Rivista di diritto internazionale privato e processuale 511 (2008); cf. Tribunale di Pavia, December 29, 1999, Corriere giuridico 932 (2000), available at http://cisgw3. law.pace.edu/cases/991229i3.html.

are simultaneously in force:16 the first, the Hague Convention of 1955, which provides conflict of laws rules; the other, the CISG, providing substantive sales rules. The question is, therefore, which of these two conventions should be primarily applicable.17 The two laws may lead to the same result – the conflict of laws rules determine the applicable law to be the CISG if they refer to a contracting state of the CISG. A notable example is offered by the judgment of the Italian Supreme Court in plenary session in Premier Steel Service vs. Oscam:18

For the international sales of goods . . . , the rules of international private law are established by the Hague Convention of 15th June 1955 . . . , which has an international nature (art. 7) and prevails over the Rome Convention of 19th June 1980 . . . , to which art. 57 of Statute no. 218/1995 refers (this prevalence can be deduced both from the final part of art. 57, and from art. 21 of the Rome Convention). The Hague Convention of 1955, in contrast with what was argued by the resistente [the party against whom a second-level appeal has been filed], cannot be considered as abrogated by the Vienna Convention of 11th April 1980 . . . , because this latter Convention contains substantive uniform rules, rather than international private law rules, given that the former provide substantive law whose purpose is to substitute domestic law, rather than to determine the law applicable to the contract of sale, which must be identified on the basis of the Hague Convention. According to art. 3 of this latter Convention, in default of a law declared applicable by the parties a sale shall be governed by Italian law, as it is the country in which the purchaser has his habitual residence . . . The locus destinatae solutionis . . . must therefore be determined on the basis of Italian law. Nonetheless, given that Italy has signed the above-mentioned Vienna Convention . . . , Italian law has been substituted by the provisions of that Convention (art. 1, paragraph 1, letter b).19

But such an undoubtedly complex interpretation would lead to the nonapplication a priori of CISG Article 1(1)(a), as if the article consisted only of 1(1)(b). If the applicability of the CISG originates from Article 1(1)(a), the CISG applies; it is lex specialis in relation to the provisions on the conflict of laws, which only govern the choice of applicable law indirectly. If the issue concerns international sales, the closer and more “specialized” source of law is the CISG, which contains uniform substantive provisions, rather than

16The framework of international conventions signed by Italy on the subject of sale is even more complicated, and includes, moreover, the two Hague Conventions of April 15, 1958; the New York Convention of June 14, 1974; and the Geneva Convention of 1983: but none of these conventions is actually into force, due to the lack of the necessary number of ratifications; for further information, see Boschiero, “Le convenzioni internazionali,” 233 et seq. and 263 et seq.

17The problem is not be solved if the Hague Convention of 1955 was replaced by the Reg. EC 593/2008 or – but it is now very rare – the Rome Convention of 1980. See Boschiero, Il coordinamento delle norme in materia di vendita internazionale (Padua: Cedam, 1990).

18Corte di Cassazione, June 19, 2000, no. 448, Giurisprudenza italiana 233 (2001), Foro italiano I 527 (2001), Corriere giuridico 369 (2002), available at http://cisgw3.law.pace.edu/cases/000619i3.html.

19In the same direction Corte di Appello di Milano, March 20, 1998, Rivista di diritto internazionale privato e processuale 170 (1998), diritto del commercio internazionale 455 (1999), available at http://cisgw3.law. pace.edu/cases/980320i3.html; and the already mentioned Corte di Cassazione, February 1, 1999, no. 6; id., December 14, 1999, no. 895; id., June 6, 2002, no. 8224, which ignore the Hague Convention of 1955, but, however, permit the application of CISG through the filter of the provisions on the conflict of laws, rather than by virtue of its nature of lex specialis which directly regulates international sale (a peculiar opinion can be found in Corte di Cassazione, June 6, 2002, no. 8224, where, despite the fact that the contract sub judice has been qualified as a sale, the court does not apply either the Hague Convention of 1955, or the CISG; the motivation is too short to draw from it the exact principle of law applied to the case).