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The case concerns a case padova for the supply of goods rabbits between a Slovenian case padova supplier and an Italian company buyer. While the contract was being performed, the buyer, unsatisfied with the quality of the goods, suggested that the supplier would adopt a new genetic type of rabbits called "Grimaud"after selling the remaining rabbits and providing learn more here a "sanitary clearing" of the farm.

The supplier proceeded with the sale below cost of the remaining rabbits, but was then unable to obtain from the breeder of the genetic type "Grimaud" the new rabbits for its farm and was therefore unable to fulfil the supply contract to the buyer. As a result, the buyer terminated the agreement alleging the supplier's non performance.

The supplier commenced an action before an Italian Court of First Instance alleging that the inability to perform was due to the conduct of the buyer, who had requested the change of the genetic type of rabbits but had failed to cooperate to obtain the delivery of the new type of rabbits.

The supplier click damages for the sale below cost of the first set of rabbits and case padova the termination of the agreement. The buyer objected that the quality of the first type of rabbits case padova defective, that the decision to adopt the Grimaud type had been freely taken case padova the supplier, and finally that the breeder of the Grimaud rabbits had refused to give its rabbits to the supplier because this latter had failed to reach a satisfactory level of "sanitary clearing".

The Italian Court concluded that the supplier had committed a fundamental breach of contract according to art. Before deciding the merit of the case, the court examined some preliminary issues regarding the applicable law. The Court argued that case padova the matter under dispute the substantive uniform law i.

The Court also addressed the issue of implicit exclusion of the CISG on the basis of the agreement in light of the opt-out clause of art. Arguing that what stated in the contract should not be considered either an explicit or an implicit exclusion of euro casino descargar CISG, the Court case padova that the reference to law or regulation of the ICC could not be intended as "choice of law" according to private international law case padova. Key CISG provisions at issue: Articles 6 ; 7 1 ; 12 ; 25 ; 49 1 b [Also cited: Articles case padova ; 47 ; 73 ].

Choice of law ; Internationality ; Fundamental breach ; Avoidance. Ostroznik Savo and Eurotrafic S. Additionally, Ostroznik Savo requested the Court to order the defendant bank to pay the amount of 35, Italian lire under the case padova of surety.

In fact, the guarantee only pertained the payment of the invoices issued after delivery of weaned rabbits had been affected; thus, the guarantee did not result in any form of compensation. The judge gathered the oral evidence of Mrs.

At the hearing of 22 Septemberthe parties' counsel delivered their final speeches and the judge reserved rendering his decision until after case padova parties had filed their final submissions and replies.

Case padova, the Court needs to examine the procedural objections raised by La Faraona. Case padova text of article 5 of the contract states that "in the event of a dispute arising between the parties concerning the quality of the product at the time of delivery, the final decision shall be arbitrated at the Official Italian-Slovenian International Chamber of Commerce case padova Milan Italy or at any other Official Inspection Strategy inside numbers roulette mutually agreed on.

The first article is not applicable because - if it is true that defendant objects in its statement of defense, the rabbits lacking the agreed quality - that lack of quality is not the alleged reason for the termination of the contract; that is, case padova, the plaintiff having ceased to supply case padova defendant for its own fault. Thus, the dispute does not case padova to casino bregenz spielen quality of one or more installments of rabbits, which, according to the parties' agreement, would have required the inspection of the animals by an expert commission case padova in the contract as "Inspection Case padova. For this reason, the present dispute does not fall within the scope of the arbitration clause, whose applicability has been expressly limited to the resolution of disputes concerning the "quality of the product at the time of delivery" it has to be added that the defendant did not provide any proof as to the existence of an Official Italian-Slovenian International Chamber of Commerce in Milan and, case padova its very existence is not a notorious fact, the Court has serious doubts about the validity of the clause.

The Court needs to focus more on the second article, by which apparently the parties intended to regulate their relations under the "law of the International City club casino withdrawal of Commerce of Paris" and to so exclude the applicability of the Italian and Slovenian national laws as well as of the United Nation Convention on the International Sale of Goods It has to be initially pointed out that the present dispute has an international character.

From that premise, it follows case padova necessity to identify the applicable substantive law. If it might be argued that such an identification should be made according to the rules of private international law, as this is their proper function. Nonetheless, the Court opts for a different solution that favors, as far as possible, the application of rules of uniform substantive law, such as the United Nation Convention on the International Sale of Goodsratified [by the Italian Republic] by Law of 11 December n.

Pavia [Italy], 29 December [ High fashion textile case ] in Case padova giuridicos. Vigevano [Italy] [ Rheinland Vertsicherungen v. Atlarex ], 12 Julyin Giur. Case padova [Italy] [ Porcelain tableware case ], 26 Novemberin Giur. Padova [Italy] [ Agricultural products case ], 25 Februaryin Giur. Padova [Italy] [ Pizza boxes case ], 31 Marchin Giur.

The prevailing force of the UN Convention that is a convention on uniform substantive law, and not of international private law as is sometime erroneously said over the rules of private international law lies in the case padova that the Convention is lex specialis because its sphere of application is more limited than that of the rules of private international law.

The Vienna Convention only governs sales contracts, whose international character depends on the different national places of business of the contracting parties, as opposed to the case padova of private international law which refer to all kind of contracts, without any sort of limitation.

According to this Court's opinion, the specificity - and thus prevalence - of the uniform substantive rules is also based on an additional consideration case padova their content.

The substantive rules have to be considered specific because they "directly" address the issues in dispute and so avoid the double step necessary for the application of the rules of private international law, which is to say, the investigation of the applicable law based on the connections' criteria and then its application.

As case padova the objective standpoint, there has to be a sales contract, of which the Convention case padova no definition. The absence of such a definition still does not justify the adoption of a definition provided for by the municipal law, e. The concept of "sale" in the Convention has to be extrapolated autonomously, as is case padova case with the majority of other concepts among them, "place of business", "habitual residence", "goods", but not the one of "private international law" that case padova to the definition of the forum where the dispute is heardin other words, without referring case padova specific notions of case padova particular national legislation.

It has now to be determined if the contract in dispute - that under Italian law is qualified as a supply contract - falls within the application ratione materiae of the Convention. An affirmative answer is a consequence of the case padova that the Convention's scope is to set up the substantive discipline for international contracts providing for case padova of movable goods, transfer of their property and payment of the price, regardless of the legal qualification that the described economic activity may have under municipal laws.

This orientation is also confirmed by case padova jurisprudence which has to be taken into account according to article 7 1 of the Conventionthat has always considered a supply contract as falling within the scope of the Convention, see:. This affirmative solution is also confirmed by the wording of the Convention: Because it is not possible to ascertain from the uniform law Convention whether the several livraisons only attain the modality case padova performing the delivery, while case padova moment of transfer of property in the goods has to be fixed at case padova time of execution of the contract that is what happens in the event of contract for the sale of goods with subsequent deliveriesthe Court agrees with the opinion of scholars in considering the Convention applicable to supply contracts, under which the passing of property only take place at the time each installment is delivered.

Additionally, the goods that are the object of the contract and of the supply contract as well have to be movable and tangible for that requirement, see:. The Convention is applicable to our case because all the above mentioned conditions are met and animals are case padova movable goods under the Convention.

Case padova the Convention to be applicable, the contract also has to be international. The Convention, similar to the vast majority of conventions on substantive uniform law, defines this aspect. In that regard, it is necessary that the contracting parties have their place of business in different States at the time the contract was entered into it is not relevant the eventual change of this requisite at a later stage.

Place of business has to be considered the place where a business activity having the character case padova duration, stability and autonomy is set, see:. Case padova contract in dispute has this international character because the supplier has its place of business in the Slovenian Republic and the buyer in Italy.

Further, as to the requirement of article 1 2 of the Convention, this international character was clear to the parties at the time the contract was entered into. In our case, it is worth mentioning that the Convention has entered into force both in Slovenia and in Italy before the date the contract was entered into. Accordingly, the Convention is applicable ex article case padova 1 a. Additionally, it has to be pointed out that parties did not excluded the application case padova the Convention, even if they could still have done so also tacitly, as often pointed out by the Italian see case padova. In fact, the parties' case padova in article 7 of the contract of the choice of the "laws and regulation of the International Chamber of Commerce of Paris, France" does not constitute either an express or a tacit exclusion of the Convention an implied or tacit exclusion, e.

The Court consider it proper to stress that the reference to the case padova and regulation of the International Case padova of Commerce of Paris cannot be considered a "choice of law" according to click at this page rules of international private law that - at least under the Italian perspective - do not admit the selection of case padova non-national set of rules as is clearly stated in article 2 1 of the Case padova on the Law Applicable to the International Case padova of Movable Properties, ratified [by the Italian Republic] by Law of 4 February n.

Which is to say that article 7 of the contract is not a choice of law under the rules of international private law, and so it is case padova capable of having the selected rules prevail over the mandatory rules otherwise applicable case padova same would have happened if the parties opted for the lex mercatoriathe Unidroit Principles or for the same UN Convention in the event it would have not been applicable.

For the said reasons, the parties' choice does not amount to an implied exclusion of the Convention. Nonetheless, the previous considerations do not exclude that the selection of a non-national set of rules might have some effect. It might be argued that that selection case padova the contractual stipulation per relationemoffering an internal regulation of the contractual relation.

In other words, the case padova - by opting for non-national rules and by referring to them as contractual clauses - might derogate from the non-mandatory rules of the applicable law, and the UN Convention as well the latter, even though has to be applied by the judge ex officiosee:.

In our case, the parties' choice does not offer the opportunity to identify precisely the rules of the contractual relationship, because the reference to the "laws and regulations" of the International Chamber of Commerce in Paris is too vague and imprecise. For the sake of completeness, it has to be added that the selection made by the parties cannot even interpreted case padova excluding each and every national law which, abstractly, might impede the case padova of the UN Convention as law assimilated by the Contracting States because the Italian international private law, although admitting a negative choice of law, does not permit the exclusion of each and every national law.

Based on the aforementioned considerations, the applicability of the United Nation Convention to the contract de quo is affirmed. As to the subject matter, the Court judges the plaintiffs' requests unsubstantiated and has to reject them. The evidence gathered demonstrated that Ostroznik Savo did not perform its obligations. In fact, once it agreed to case padova the rabbits of the Hyla's genetic strain with animals of Grimaud's genetic strain, it did not prepare the farm for the new female breeds and, consequently, it was unable to continue the supply of animals to La Faraona.

Even if the defendant suggested replacing the genetic female breeds, after intensive case padova up of the farm, because of several diseases in the rabbits previously delivered such diseases have also been inspected and reported by the public sanitary service; see witnesses' reports of dott.

Orlando Carlo, veterinary-surgeon of the Case padova Sanitary Service no. The witness Fruscalzo Giovanni, director of Grimaud Italia, said he was personally at the Case padova farm to check its condition. Grimaud was http://warriorsoul.info/casa-di-cura-san-luca.php in ascertaining that, before delivery of its animals, the farm had no sanitary problems.

Fruscalzo reported the farm was not clean and that it case padova plenty of stools. In other words, even case padova there were no more animals in the farm, no "sanitary vacuum" sterilization of the farming structure had been done. Consequently, Grimaud refused to deliver its rabbits.

Fruscalzo declared that Grimaud Italia autonomously decided not to supply the animals to Несколько little creek casino jobs потрудились Savo, because of the sanitary and hygienic problems. Fruscalzo who has no particular interest in case padova present dispute is a credible witness, more than Mr. Hrastnik Uros employee of the plaintiff who said the farm was clean and that they were "waiting for the communication of the delivery date before proceeding with the sterilization.

The Case padova sees no reason why Ostroznik Savo had to wait before completing the "sanitary vacuum", because Grimaud's director went to Slovenia for the sole reason of inspecting the farm's condition case padova the purpose of taking the rabbits, and because the delivery has been contracted two months earlier. Thus, it is the Court's understanding that Grimaud Italia, having ascertained that the farm had not been adequately cleaned and sterilized, did not dare to deliver its animals because of the material risk that rabbits generated there and to be imported on the Italian market could be infected.

That would have also caused serious damages not only to the reputation to the patentee of the Grimaud genetic strain. Thus, it was not La Faraona's fault that the plaintiff did not receive the female rabbit breeds of Grimaud's genetic strain. There is no proof that the defendant did not want to buy rabbits anymore from Savo's farm if that would have been its intention, it was easier case padova contract out by giving case padova according to the contract.

It was instead Ostroznik Savo that was in breach, by not performing the so-called sanitary vacuum, i. Case padova is the plaintiff's fault if the rabbits of the Mobile casinos no deposit bonuses genetic strain were not delivered case padova if, consequently, it has not been able to supply the animals to La Faraona. Case padova not received any more deliveries of the animals and - even before - having known of the unsatisfactory sanitary conditions of the farmLa Faraona legitimately reacted by bringing the contract to an end on 6 July In fact, the contract provided for weekly delivery of some thousands of animals.

Having ascertained that the seller was not able to delivery the rabbits, the buyer correctly decided to bring the contract to an end, because to wait further would have been detrimental. Under article 25 of the Convention, Ostroznik Sava's breach has to be considered "fundamental", that is, essential the Court considers the meaning of "fundamental" in article 25 as corresponding to "non irrelevant" in article of the Italian Civil Code, that allows the termination of contracts with obligation on both parties.

Both case padova reflect a need for proportionality between the relevance of the breach and the remedies available to the non-breaching part: When case padova main performance in our case, the periodical case padova of rabbits is discontinued - and it is not reasonable case padova expect its resumption - the case padova has to be considered as fundamental.

Article 49 of the Convention, stating the circumstances in which the buyer can terminate the contract, seems to provide a distinction between fundamental breach by referring to article 25 and non-delivery on that respect, case padova has to be stressed the inadequacy of some unofficial Italian translations of article 49 1 b - like the one in Nuove Leggi Civili Commentatep.

There case padova no doubt that a non-delivery always amounts to fundamental breach, because it excludes a priori the possibility of case padova buyer getting any benefit from the contract see:. The same consideration applies to a supply contract with no expiry date, click at this page the event the seller discontinues the deliveries so preventing the buyer from enjoying any further benefit from the contract.


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