In the European context, the law applicable to the contract of sale of movable goods is governed by Article 4 of the Regulation EC593/2008which provides that in the event of a lack of choice of the parties, "a contract for the sale of goods is governed by the law of the country in which the seller has his habitual residence.”

In the event that the relationship is governed by Italian law, one must certainly be aware that, implicitly, the Vienna Convention 1980 on the International Sale of Goods.

Having said that, this article will briefly analyse two aspects of great practical and legal relevance, i.e. understanding how the time limit for reporting defects and the time limit for bringing an action are regulated when the Vienna Convention applies to the contractual relationship.

(a) Complaint of Defect

This term is governed by Art. 39.1 of the Convention, which provides:

“the buyer forfeits the right to rely on a lack of conformity if he does not report it to the seller, stating the nature of the lack of conformity, within a reasonable timefrom the time when it was ascertained or should have been ascertained.”

The problem of quantification of the 'reasonable period', should be regulated on the basis of general principles of international law, taking into account the decisions of the Courts of the who have joined the Vienna Convention and the type of goods sold. This principle was expressed in Article 7.1 of the Convention, which provides that:

"for the purpose of interpreting this Convention, it shall be in view of its international character and the need to promote theuniformity of its applicationand to ensure respect for good faith in international trade.”

If one looks in the European context "reasonable time limit" is normally understood as a period of approximately 20-30 days. (see Oberlandesgericht Stuttgart, 21.8.1995, Oberlandesgericht Köln 21.8.1997, Obergericht Luzern 7.1.1997, Cour d'Appel Grenoble 13.7.1995).

In any event, should the dispute be heard by an Italian court, it is noted that the Italian courts would have to take into account European rulings on the interpretation of the Vienna Convention, are not bound to them and may have a tendency to interpret this term using the parameters of Italian law.

As is well known, in this regard, Article 1495 of the Civil Code provides that:

"the buyer forfeits the right to the guarantee if he does not report the defects to the seller within eight days of their discovery, unless the parties or the law stipulate otherwise."

First, it must be specified that it is common ground in doctrine and jurisprudence that the eight-day time limit applies not only in the case of a warranty claim but also in the case of an action for damages. Moreover, the eight-day period runs from the delivery of the goods to the purchaser or, in the case of hidden defects, from the discovery of the defect.

That considered, according to some (but rare) Italian judgmentsthe reasonable deadline for the complaint is around 20-30 days (Court Vigevano 12.7.2000; F. Ferrari, Giur. It. 2001, 2) and this term was even extended to 4 months (Court of Bolzano, 27.1.2009)

In any case, it should be borne in mind that the Court of Cassation has not yet ruled on the point, and therefore it is prudently recommended, in order to be sure that the complaint was indeed timely, to first check whether it was made within 8 days of the discovery of the defect.

(b) Prescription

A second aspect, of no small importance, concerns the limitation period.

In this regard, it should be noted that the Vienna Convention does not expressly provide for a limitation periodbut only a time limit for reporting, which may not exceed two years. Article 39.2 provides that:

"in all cases, the purchaser forfeits the right to rely on a lack of conformity if he does not report it within a period of two years, starting from the date on which the goods were actually delivered to him, unless this deadline is incompatible with the duration of a contractual guarantee.”

Since the issue of prescription is not dealt with in the Convention, it will be necessary to ascertain what Italian law provides in this respect. In this regard, Article 7.2 of the Convention provides that:

“questions concerning matters governed by this Convention and not expressly settled by it shall be governed in accordance with the general principles by which it is inspired, or, in the absence of such principles, in accordance with the law applicable under the rules of private international law.”

The statute of limitations, in the context of contracts of sale, is regulated in Italian law in Art. 1495 of the Civil Code:

"the action is, in any event, time-barred within one year from delivery; but the buyer, who is sued for performance of the contract, may always enforce the warranty, provided the defect in the thing is notified within eight days of discovery and before the expiry of one year from delivery. "

One wonders whether such term of one year, can be coordinated with the two-year term provided for in Art. 39.2 of the Convention for reporting defects. Here, too, there are differing opinions.

In the aforementioned judgment, the Court of Bolzano considered that the term of two years in Article 39(2) of the Convention is incompatible with the provision for a limitation period shorter than one year in Article 1495(3). According to the Court of Bolzano, therefore, the time limit under Article 1495 para. 3 should be extended from one year to two years.

According to authoritative doctrine (A. Reinstadler; F. Ferrari) and the jurisprudence of the European Courts (Oberster Gerichtshof - Österreich, - 25.6.1998) the loopholes in the convention must be filled according to the law applicable to the contract, even if it provides for a term of less than two years.

Therefore, even on this point, Italian jurisprudence and doctrine are not in agreement and it is deemed advisable, as a matter of prudence, to check whether the one-year limitation period, pursuant to Article 1495 of the Civil Code, has been observed.