Case number: 90
Article number: sales convention / 49(1)(a); 78; 84(1)
Thessaurs issue:
Country of decision: Italy
Year of decision: 1989
Type of decision: Judicial decision

Case 90: CISG 49(1)(a); 78; 84(1)
Italy: Pretura circondariale di Parma, sez.di Fidenza; 77/89 24 November 1989
Foliopack Ag v. Daniplast S.p.A.
Original in Italian
Unpublished
Reported on in English: [1995] UNILEX (a case collection system on CISG, published in paper and electronic form by
Transnational Juris Publications, Inc., Irvington-on-Hudson, New York, Copyright: Italian National Research Council-Centre
for Comparative and Foreign Law Studies), D.89-7

The plaintiff, a Swiss buyer, placed an order with the defendent, an Italian seller. The order contained a request that the goods
be delivered within the following 10 to 15 days. Almost two months later, the seller, after asking the buyer to confirm its order,
specified the purchase price and assured the buyer that all the goods would be dispatched within a week. Two months later,
the buyer had not yet received the goods. As a consequence, the buyer sent the seller a notice canceling the order and
requiring refund of the price. The seller admitted that it had handed over the goods to the carrier only after receiving the notice
of cancellation from the buyer, and that, moreover, the delivery was partial. The buyer refused to accept the late and partial
delivery and, as the seller did not refund the purchase price, commenced legal action claiming avoidance of the contract for
breach by the seller. The buyer also claimed a refund of the purchase price with interest and damages.

The court found that according to the statements and conduct of the parties the contract was to be considered concluded at
the time the order was confirmed, and that the seller was bound to dispatch all the goods within the following week. It was
held that the delay by the seller in delivering the goods, together with the fact that two months after the conclusion of the
contract the seller had delivered only one third of the goods sold, amounted to a fundamental breach of the contract according
to article 49(1)(a) CISG.

The court held that the buyer was entitled to avoid the contract and to recover the full purchase price already paid to the seller.
Without referring to CISG, the court awarded the buyer interest on the price to be refunded at the Italian statutory interest
rate. Contrary to what is provided in article 84(1) CISG with regard to time of accrual of interest, the court held that interest
was payable from the date of avoidance of the contract. The court did not grant any further damages as there was no evidence
of any further damage suffered by the buyer.