Case number: 54
Article number: sales convention / 1(1)(a); 1(1)(b); 4; 79
Thessaurs issue:
Country of decision: Italy
Year of decision: 1993
Type of decision: Judicial decision

Case 54: CISG 1(1)(a);1(1)(b); 4; 79
Italy: Tribunale Civile di Monza 14 January 1993
Nuova Fucinati S.p.A. v. Fondmetal International A.B.
Published in Italian: Giurisprudenza Italiana 1994, I, 146 and Il Foro Italiano 1994, I, 916
Commented on by Bonell in Giurisprudenza Italiana 1994, I, 145 and Di Paola in Il Foro Italiano 1994, I, 917

The plaintiff, an Italian seller who failed to deliver the goods to the defendant, a Swedish buyer, claimed avoidance of the sales
contract on the ground of hardship ("eccessiva onerosit sopravvenuta") since the price of the goods had increased after
conclusion of the contract and before delivery by almost 30%.

The court held that CISG was not applicable since at the time of the conclusion of the contract CISG was in force in Italy but
not in Sweden (article 1(1)(a) CISG). The court also excluded the application of the Convention on the ground that the parties
had chosen Italian law as the law governing their contract holding that article 1(1)(b) CISG operates only in the absence of a
choice of law by the parties. In the court's opinion, even if CISG applied, the seller could not rely on hardship as a ground for
avoidance, since CISG did not contemplate such a remedy in article 79 or elsewhere. A domestic court could not integrate
into CISG provisions of domestic law recognizing a right of avoidance of the contract in case of hardship since hardship is not
a matter expressly excluded in article 4 CISG from the scope of the Convention.