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General terms and conditions: battle of the forms, Vienna Convention and civil code.

To understand whether, when and to what extent the general terms and conditions apply to the sales relationship is the purpose of this article, in which an attempt will be made to outline the differences between the civil law and the Vienna Convention rules.

In commercial negotiations it is far from uncommon for the buyer, while expressing to the seller his willingness to accept the proposal received, to include in his declaration additional or different conditions to those used by the other party.

It sometimes happens that the purchaser merely accepts the proposal, enclosing its general terms and conditions within the communication. Sometimes, the general terms and conditions are not even attached to the order confirmation, but only referred to (e.g. by means of a link which links to a page on the site where they are uploaded). It still happens that both parties enclose their "general terms and conditions" to all the documentation they exchange in the course of negotiations for a particular sale, or even in the course of their much broader business relationship (in purchase orders, emails, invoices, website, delivery notes, delivery notes, etc.).

To understand whether, when and to what extent the General Terms and Conditions (GTC) apply to the sales relationship is the purpose of this article, in which an attempt will be made (as far as possible) to outline the differences between the civil law and the Vienna Convention (CISG).

With the aim of giving the article a systematic approach and hoping that this will make an issue that is certainly far from easy more understandable, we prefer to proceed by stepFirstly, analysing what happens if only one of the contracting parties has referred to its GTC at the stage of the conclusion of the contract, and then moving on to the more complex situation where both parties have referred to their GTC (so-called ".battle of the forms").

1. Proposal and acceptance: Art. 1229 of the Civil Code and Art. 19 CISG.

Although the Vienna Convention does not contain a rule expressly regulating general terms and conditions, since its Part II (Art. 14-23) comprehensively regulates the "formation of the contract", it will be necessary to refer to the rules contained therein in order to understand what formal requirements the GTC are subject to.[1]

In particular, Art. 19(1) of the Convention provides that a reply to a contractual proposal purporting to be an acceptance, but which contains additions, limitations or other modifications, is to be considered as a rejection of the proposal and is therefore to be considered as a counter-proposal.

From a first reading of this provision, it would appear that the CISG also adopts the principle transposed by the civil law system in the fifth paragraph of Art. 1326 of the Civil Code, under which "an acceptance not in conformity with the proposal is equivalent to a new proposal".

In fact, the Civil Code very strictly accepts the so-called '.mirrow image rule", i.e. the need for a fully corresponding relationship between the content of the proposal and the acceptance, even considering it necessary that the meeting and merging of proposal and acceptance should involve not only the main clauses, but also the ancillary ones. The case law reads:

"On the subject of the parties' agreement, the hypothesis provided for in the last paragraph of theArticle 1326 of the Civil Code. also occurs when the changes requested at the time of acceptance are of secondary value; therefore, in progressive training contractsin which the agreement of the parties on all the terms is reached gradually, the moment of finalisation of the transaction is normally that of agreement final on all main elements and accessoriesunless the parties intended to bind themselves in the agreements reached on individual points by reserving the regulation of secondary elements. "[2]

La CISG, on the other hand, knows an exemption to the "mirrow image rule"contained in Art. 19(2). In particular, the response to an offer received, which has a different content, but not to such an extent as to substantially alter its terms (c.d. immaterial modifications), constitutes an acceptance of the offer unless the offeror, without undue delay, contests such discrepancies either orally or by serving a notice to that effect on the other party.

But what are the immaterial modifications introduced by Article 19(2)?

International jurisprudence has considered not substantiale.g. a change in the acceptor favourable to the proposer[3] or for these irrelevant[4]an amendment to the packaging clause[5]an amendment to the clause on the time limit for reporting defects[6]a warning that the price might fluctuate due to changes in market prices[7].

The third paragraph of the aforementioned Art. 19 comes to the interpreter's rescue, indicating the variations that instead are substantial and which therefore, if made in the answer, transform it into a rejection of the proposal, so that it necessarily becomes a counter-proposal. These are the modifications:

"the price, the payment, the quality and quantity of the goods, the place and time of delivery, the limits of one party's liability to the other or the settlement of disputes."

Arguably, the choice of having adopted a "mirrow image rule" is not rigid, it is dictated by the need to prevent one of the parties, who, in the presence of changed factual circumstances, intends to escape from its contractual obligations, from achieving this result by pointing out a non-substantial discrepancy between the proposal and acceptance and, therefore, the non-conclusion of the contract.[8]

Thus, in any hypothesis in which the adherent's general terms and conditions involve non-substantial modifications, the contract, in the absence of an objection on the part of the proposer, must be deemed to have been concluded and will be governed by the clauses contained in the acceptor's form (again, it should be noted that only the hypothesis in which it is only the adherent who has invoked the GTC and not both parties are being analysed at present).

2. When the GTC apply to the contract: Civil Code and CISG compared.

Taking the reasoning further, in the event that the adherent's GTC contain significant changes with respect to the proposal, the application of the civil law rules, as opposed to the Vienna Convention rules, has obvious practical impacts.

In fact, if only the civil law rules apply to the relationship, the problem will (mainly) be solved by using the tools provided by Art. 1341 of the Civil Code, which provides, in a very condensed form, (para. 1) that the GTC are effective vis-à-vis the party who received them, if they were known or knowable by him using ordinary diligence at the time of the conclusion of the contract, with the exclusion (para. 2) of the clauses "vexatious" the validity of which is, however, subject to specific written acceptance by the recipient.

With regard to non-'vexatious' clauses, there are essentially two limits to the enforceability of the GTC imposed by law:

the reference to the time of the conclusion of the contract, the purpose of which is to exclude the effectiveness of general terms and conditions that the adherent has had the opportunity to become aware of at a time subsequent to the perfection of the contract (e.g. a text inserted in the invoice[9]);
As for the criterion of ordinary care, this must refer to a concept of normalitywhich must be calibrated according to the type of economic transaction, it being however excluded that the adherent may be required to make a special effort or expertise in order to know the general terms and conditions used by the predisposing party.[10]

If the Vienna Convention applies to the relationship, in addition to Art. 19, Arts. 14 and 18, which govern the "formation of the contract", as well as Arts. 7 and 8, which govern the criteria of interpretation, will come to the rescue.

Indeed, according to much of the doctrine[11] and case law[12]In the event of the application of the CISG to the relationship, the above rules are the only ones that must be adopted in order to understand the formal requirements to which the CISG must be subject, with the consequent inapplicability of the rules of Art. 1341 of the Civil Code.

Like already analysed in a previous article, Art. 14 provides that a proposal addressed to one or more persons, in order to be such, must be sufficiently precise (sufficiently defined) and indicate its author's willingness to be bound.

In adopting this principle to the general terms and conditions of sale, the German Supreme Court stated that it must be apparent at the formation of the contract:

expresses the offeror's intention to incorporate the GTC into the offer;
the text must have been transmitted or, in any event, made available to it prior to the conclusion of the contract.[13]

The actual 'availability' of the GTC must be bilaterally assessed in each case, in the sense that it is also incumbent on the receiver, at the negotiation stage, to ascertain and understand whether or not the GTC are applicable to the relationship, using the diligence of the 'general terms and conditions of sale'.reasonable person"imposed on him by Art. formerly Article 8(2).[14]

It would seem, therefore, that the Convention imposes a higher degree of diligence on the entrepreneur in ascertaining and verifying by what contractual terms the relationship is governed; this is certainly in line with the spirit of the Convention, designed to regulate international sales relationships between operators in the sector who are required, necessarily, to have a level of competence appropriate to the activity they perform.

Similarly to civil law, the time at which the GTC are made known to the recipient is essential, which is why case law has held that GTC that have been submitted to the recipient once the relationship has already been concluded, i.e. by means of a reference thereto in the sales invoice, cannot form part of the contract.[15]

3. Implied acceptance by conclusive facts.

Once it has been established that the conditions were known or knowable to the recipient, the Convention being characterised by the principle of freedom of form (and evidence) under Art. 11, in the absence of express acceptance, it must be understood whether they were accepted implicitly, in accordance with the combined provisions of Art. 11 and Art. 11.Article 18 (acceptance of the proposal) and Article 8.

In fact, Article 18(1) states firstly that "a statement or other conduct of the recipient indicating consent to an offer constitutes an acceptance."Furthermore, Art. 18(3) states that "the recipient of the offer may indicate consent by performing an act relating, for instance, to the shipment of goods or payment of the price."

On this point, a US court ruled that:

"under the CISG, acceptance does not require a formal signature or acceptance of the offer. [...] The investigation showed that at the time STS had sent sales quotations to Centrisys, including general terms and conditions as an annex to the communication. By adopting the sales quotation, Centrisys accepted the contractual proposal for the sale of the centrifuge, including the general sales conditions."[16]

It is thus inferred that if the GTC were known or knowable (using the diligence of the reasonable man set forth in Art. 8) by the receiver and have been accepted by the latter by implication, they will form part of the contract unless the parties agree or the usages and customs applicable to the relationship make their validity conditional on a form which the parties have not complied with.

4. Language of the CGC.

A very brief digression on the subject of the obligations of diligence of the receiving party, there are divergent orientations as to the validity of general terms and conditions written in a language not known to the receiving party; part of the case law, in fact, considers that the GTC written in a foreign language are in any event valid, precisely by virtue of the obligations under Art. 8(2), it being held that an entrepreneur or in any event an international operator, before signing a contract, is bound to verify what he is signing even (trivially) by having a simple translation made.[17]

5. Battle of the forms: knock-out and last shot rules.

At present, the scenario where only one of the two parties has sent its general terms and conditions has been analysed.

What happens, on the other hand, if one party sends a proposal to the other party, enclosing its own GTC, and the other party responds, albeit accepting the proposal, by enclosing its own GTC that differs from those received, and then both commence performance of the contract?

Considering that the parties have executed the contract, the need arises to understand from which clauses standard the relationship is regulated and two main approaches are used to do this: the last shot rule and the knock-out rule.

As an advocate of "last shot rule"it is deemed appropriate to refer to the most authoritative doctrine:

"if the general terms and conditions of the acceptor substantially alter the terms of the proposal, the contract cannot be considered to have been concluded, not even by excluding the conflicting general terms and conditions, as would be the case in part of the doctrine and case law which favour the so-called "Rechtsgültigkeitslösung" o "knock-out rule'. In our view, if the contract is performed, this must be considered as acceptance by the (original) offeror of the acceptor's counter-proposal - of which the general terms and conditions that substantially modify the original proposal also form part; in doctrine it has been referred to as the "knock-out rule".last shot rule'[18]

According to the different theory of 'knock-out rule"In the event that the parties have exchanged conflicting forms, the fact that the contract has been executed should be interpreted as the intention of the parties, not so much that they have not reached an understanding (otherwise the execution of the contract would not be explained), but rather that they have reached a consensus regardless of the conflicting clauses, which clauses must instead be removed from the contract.

The German Federal Court espoused this theory, justifying it on the basis of the criteria of good faith and fair dealing (Art. 7(1) CISG), stating that clauses contained within general terms and conditions become part of the agreement (only) if they do not conflict with each other.[19]

Certainly, this theory has implications that are far from easy to execute and difficult to apply in practice, if one thinks of the fact that it will have to be left to the judge to reconstruct the actual will of the parties pursuant to Art. 8, going so far as to delete the clauses on which there was no actual meeting of wills between the contracting parties.

[1] Bortolotti F. ''Handbook of International Commercial Law'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General terms and conditions of contract in contracts for the international sale of movable goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''The general terms and conditions in use in international trade and their evaluation at the transnational level'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981); Larry A. DiMatteo, International sales law. A global challenge, Cambridge, 2014.

[2] Cass. Civ. 2003, no. 16016.

[3] Oberster Gerichtshof, Austria, 20.3.1997.

[4] China Internationale Economic & Trade Arbitration Commission, 10.6.2002.

[5] Oberlandesgericht Hamm, Germany, 22.9.1997.

[6] Landgericht Baden-Baden Germany, 14.8.1991.

[7] Cour d'Appel de Paris, France, 22.4.1992.

[8] Bellelli, sub. art. 19, Vienna Convention on Contracts for the International Sale of Goods, commentary coordinated by Bianca, CEDAM, 1992.

[9] Cass. Civ. 1962, 2890.

[10] Bianca, Civil Law, The Contract, 1987.

[11] Bortolotti F. ''Handbook of International Commercial Law'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General Terms and Conditions of Contract in Contracts for the International Sale of Goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981).

[12] Trib. Rovereto 24.8.2006; Cass. Civ. 16.5.2007, no. 11226.

[13] Bundesgerichtshof, Germany, 31.10.2001; on this point also Zeller, The CISG and the Battle of the Forms, in Di Matteo, op. cit.

[14] Zeller, The CISG and the Battle of the Forms, in Di Matteo, op. cit.

[15] Chateau des Charmes Wines Ltd. v. Sabaté USA, Sabaté S.A.

[16] Golden Valley Grape Juice and Wine, LLC v- Centrisys Corporation, 22.10.2011.

[17] MCC.Marble Ceramic Centre v. Ceramica Nuova D'Agostinoin the opposite direction, Oberlandesgericht Celle, Germany, 2.9.1998.

[18] Ferrari, sub art. 19, Vendita internazionale di beni mobili, op. cit. in Mastromatteo, La Vendita internazionale, Giappichelli, 2013.

[19] Bundesgerichtshof, Germany, 9.1.2002.

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Proposal, acceptance and pre-contractual responsibility. Vienna Convention and the Civil Code compared.

The purpose of this article is to give the reader an overview of how the Vienna Convention has regulated the institutions of the proposal of an offer, its acceptance, pre-contractual liability in negotiations and the main differences from Italian law.

At the outset, it should be pointed out that, since the Vienna Convention is characterised by freedom of form (and of proof) under Article 11, the proposal and acceptance are also to be considered free-form acts, since they may be manifested in any manner (thus either orally or by conclusive facts).[1] This provision is in any event derogable in nature, with the consequence that not only may the parties provide for the necessity of a specific form for the validity of the contract they intend to enter into, but also that such a derogation may result from the existence of usages and customs (on this point cf. commentary on art. 9).

1. Art. 14: Definition of proposal.

"A proposal for a contract, addressed to one or more specified persons, constitutes an offer if it is sufficiently definite and if it indicates the intention of its author to be bound in case of acceptance. A proposal is sufficiently definite when it indicates the goods and, expressly or by implication, fixes the quantity and price or gives indications capable of determining them.

A proposal addressed to unspecified persons is considered only as an invitation to offer, unless the person making the proposal has clearly indicated otherwise."

The definition of a proposal in the Vienna Convention is finalised in Article 14(1), which lists in detail what are the necessary elements for it to be considered valid.

In particular, that article provides that the proposal, to be such, must be "sufficiently precise", indicate the offeror's willingness to be bound, expressly state the goods or goods to be contracted and also implicitly fix (or in any event give indications for determining them) the quantity of those goods and the price[2]by referring, where they have not been determined, to the trade customs and practices referred to in Articles 8 and 9 of the Convention.

Importantly, if one wishes to expressly exclude that the manifestation of will can be regarded as a genuine proposal, it should therefore be expressly provided for, through the insertion of formulae such as 'this is an expression of interest, not an offer to buy'.

This provision, although it has no express equivalent in the civil code (which does not list in any article what the requirements of an effective proposal are), however, reflects principles that are basically common domestic law: the proposal must manifest the will of the party to be bound and, likewise, be of sufficient content to define the contractual programme to be performed.[3]

An element that is detaches instead from our right and certainly that of Art. 14(2), which provides that a contract proposal must be addressed to one or more specified persons. If, on the other hand, the proposal is addressed to a generality of persons, it has the value of a mere invitation to negotiate or to offer, unless the contrary is clearly indicated.

Therefore, the legislator of the Convention did not accept the rule (known and present in Italian law) of theoffer to the public referred to in Art. 1336 of the Civil Code as a proposal capable of leading to the conclusion of the contract at the time when acceptance is brought to the knowledge of the principal.

2. Art. 15: Withdrawal of the proposal.

"An offer has effect when it reaches the addressee.

An offer, even if irrevocable, may be withdrawn if the relevant declaration reaches the addressee before or at the same time as the offer."

Like Italian law (Art. 1335 of the Civil Code), the Vienna Convention also configures the proposal (and offer) as recetive actwhich takes effect only when it has been brought to the knowledge of the addressee. The Convention, in order to better explain when a proposal (and offer) is brought to the knowledge of the other contracting party, expressly provides in Art. 24 that

"For the purposes of this Part of the Convention, an offer, a declaration of acceptance or any other manifestation of intent "is received" by its addressee when it is addressed orally to the addressee or is delivered by any other means to the addressee at its place of business or mailing address or, if it has no place of business or mailing address, at its habitual residence"

The second paragraph of Article 15 also recognises the proposer's right to "withdraw"(and not revoke, a power granted to it by Art. 16(1)) the offer within the time limit of its delivery to the offeree.

The Civil Code does not regulate this difference, but only regulates the institution of the offer in Art. 1328 of the Civil Code, and the difference between these elements is 'only' developed by doctrine.[4]

It should be noted that the two hypotheses (withdrawal and revocation) differ in that in the first case the proposal is eliminated, even before it has become effective; in the second case of revocation, on the other hand, a manifestation of will already producing effects is eliminated.[5]

3. Art. 16: Revocation of the proposal

"As long as the contract has not been concluded, an offer may be withdrawn if the withdrawal reaches the offeree before the latter has made an acceptance.

However, an offer cannot be revoked:

(a) if it indicates, by setting a specified time for acceptance or otherwise, that it is irrevocable; or
(b) whether it was reasonable for the addressee to regard the offer as irrevocable and whether it acted accordingly."

As noted above, while Art. 15 governs the withdrawal of the proposal, Art. 16 governs the different institution of revocation.

From an initial and cursory analysis of that article, it might be thought that the uniform law discipline is aligned to the point of matching that of domestic law: although Art. 16(1) provides that a proposal may be revoked as long as the contract has not been concluded, it makes the effectiveness of the revocation conditional on the assumption that the same reaches the receiver, before it has sent its acceptance.

In fact, on closer inspection, the civil law discipline otherwise provides that the proposal may be revoked up to the conclusion of the contract, but Art. 1326(1) of the Civil Code provides that this moment occurs thereafter, i.e. when "the proposer has knowledge of the other party's acceptance"

Thus, if a person makes a contractual proposal relating to a contract of sale governed by the civil code he is free to revoke it until he has knowledge of the acceptance; if the contract is governed by the Vienna Convention, he may revoke it only until the contract is concluded, but the revocation reaches the offeree before he has sent the acceptance.

There are actually two situations in which the final moment by which the power of revocation is exercised actually coincides with the moment of conclusion of the contract.

The first hypothesis is, of course, that of a contract concluded orally: in this case there is undoubtedly contextuality between sending and receipt of acceptance.

The second hypothesis, which would in itself require more elaboration (unfortunately not compatible with the mould of the present article), when the addressee of the offer may manifest consent by means of an activity in the performance of the contract itself, pursuant to Art. 18 para.[6] Since the performance of that activity entails the conclusion of the contract, the power of revocation may only be exercised before the offeree performs that activity, which in effect replaces the declaration of acceptance.

This principle, however, has two exceptions, contained in the second paragraph of this article.

With reference to the exception provided for in Art. (a), it should be noted that in principle the fixing of a specific time limit does not in itself determine the irrevocability of the contractual proposal, but represents a presumption[7] of irrevocability. In that case, in order to avoid any uncertainty as to irrevocability, it is also advisable to include in the notice a formula such as 'this offer is valid and irrevocable until [date]'.or "our offer is still valid until [date].".

As to Art. (b) of that para. it provides that the proposal may not be revoked where the offeree has reasonably believed it to be irrevocable. It is important that, also for the purposes of proof, the offeree has actually acted accordingly, for instance by producing or designing the product, by purchasing raw materials, by entering into contracts functional to the business with third parties, by hiring seasonal workers, etc.[8]

4. Art. 17: irrevocable proposal.

"An offer, even if irrevocable, expires when its rejection reaches the offeror."

Since the offeror's power of revocation is an inconvenience for the offeree, who cannot rely with certainty on the conclusion of the contract on the terms indicated in the offer, in order to facilitate acceptance the principal may make its offer firm for a certain time. In such a case the offer is irrevocable until the expiry of the time limit.

But what happens if the offeree declares that he or she rejects the proposal.

The Convention regulates this issue clearly and explicitly in Art. 17, providing precisely that such notification (which must be made in the manner and according to the precepts briefly analysed above), entails the forfeiture of the offer.

This question is not, however, developed in our Civil Code; hence the problem of the fate of the irrevocable proposal once the offeror has refused it is debated (in doctrine). It therefore remains open whether the question should be resolved in the sense that the offeror would reacquire the right to revoke, or whether with the rejection the offeree consummates its power to accept, without the need for a revocation of the proposal in order to exclude the continuation of its effectiveness until the expiry of the time limit even after the rejection has occurred.[9]

5. Art. 18: acceptance of the proposal.

"A statement or other conduct of the recipient indicating assent to an offer constitutes acceptance. Silence or inaction alone cannot amount to acceptance.

The acceptance of an offer takes effect when the expression of consent reaches the author of the offer. The acceptance has no effect if it does not reach the author of the offer within the time stipulated by the offeror or, in the absence of such stipulation, within a reasonable time having regard to the circumstances of the transaction and the rapidity of the means of communication used by the author of the offer. An oral offer must be accepted immediately, unless the circumstances imply otherwise.

If, however, by virtue of the offer, custom or usage established between the parties the offeree may indicate that it accepts the offer by performing an act relating, for example, to the dispatch of the goods or the payment of the price, without giving notice to the author of the offer, the acceptance will take effect at the time when that act is performed, provided that it is done within the time limits set out in the preceding paragraph."

With reference to the first part of the first paragraph (concerning form), the principles of freedom of form art. 11 already briefly analysed above, which leave the offeree a wide choice in determining the manner of manifestation of consent (unless, of course, it has been derogated from by agreement or such derogation can be inferred from custom and usage).

With regard to the second part of the second paragraph, case law has recognised as conclusive behaviour Valid as acceptance: acceptance of the goods by the buyer; payment of the goods by the buyer; taking delivery of the goods by a third party; acceptance by the seller of a bank guarantee and commencement of production of the goods; issuance of a letter of credit; drafting and issuance of a pro forma invoice.[10]

The last part of this paragraph provides that inaction or the silence in themselves cannot constitute acceptance and therefore do not lead to the conclusion of the contract, unless of course this has been agreed between the parties or can be inferred from any usage or commercial practice between the parties.

Article 18 para. 1 has no immediate counterpart in the Italian legal system.

Indeed, although theArticle 1326 of the Civil Code does not deal with the modalities of acceptance, it is however settled case-law that acceptance may be expressed not only by a declaration, but also by any other conduct from which the person's negotiating intent may be inferred.[11]

Similarly, silence counts as a declaration when, having established a certain relationship between the parties, a common course of action or good faith imposes on the party the burden or duty to speak.^[12] Case law confirms this orientation, adding the possibility that, according to a given historical and social moment, having regard to the quality of the parties and their business relations, the silence of one may be understood as adherence to the will of the other.[13]

6. Revocation and pre-contractual liability: civil code.

Under civil law, revocation of consent is effective even if unjustified. Indeed, as noted above, the offeror may as a rule revoke its consent until it has had notice of the offeree's acceptance.

The principal who justifiably withdraws the proposal is (only) liable, formerly Art. 1328(1) of the Civil Code to indemnify the offeree for the costs and losses incurred by the offeree as a result of having unsuccessfully commenced performance of the contract before having notice of the revocation[14] (this provision of the Civil Code constitutes a case of blameless responsibility[15] and by lawful act).

When the withdrawal of consent is unjustified, it may give rise to pre-contractual liability[16] if it infringes a reasonable expectation (formerly Article 1337 of the Civil Code)[17] of the other party on the conclusion of the contract.[18] It is stated in case law:

"Where the contacts between two parties are not such as to lead to the conclusion of the contract because of the lack of unambiguous conduct, they may nevertheless constitute negotiations that have reached such a stage of development as to give rise to a justified expectation on the part of one party that the contract will be concluded; in such a case, unjustified termination gives rise only to pre-contractual liability, with the consequent obligation to pay damages. On the other hand, the conclusion of agreements on certain points of the contract to be concluded or partial agreements, in view of their provisional nature and their effectiveness subject to the positive outcome of the negotiations, do not go beyond the scope of the pre-contractual phase and certainly do not prove the conclusion of a contract.. "^[19]

Thus, while the Civil Code certainly does not impose a duty on the parties engaged in negotiations to conclude a contract, it does oblige them to conduct them according to good faithsuch as to give rise to a reasonable expectation that the contract would be concluded.

Regarding compensable damage, case law[20] holds, however, that (in contrast to contractual liability), only the so-called "liability" in negotiations (unjustifiably interrupted) is compensable. negative interest(1), i.e. the harm the person suffers for having uselessly relied on the conclusion of the contract; this interest may be relevant both in terms of the

emergent damage, i.e. the pecuniary loss that the person would have avoided if he had not relied on the conclusion of the contract (e.g. expenses incurred in the course of negotiations, wasted activity in negotiations), and of the
loss of profit, which the latter could have obtained for other contracts from which it was diverted.

Therefore, anyone who has vainly trusted in the success of a negotiation is entitled to be compensated for the loss of advantage he could have made if, instead of employing his activity in the failed negotiation, he had devoted himself to other negotiations from which he could have made a certain profit: in this respect he will have to prove the profit he would have made from the execution of other potential business, the subject of specific advanced negotiations that he then abandoned in order to cultivate the one that failed due to the impropriety of the other party to the negotiation.

7. Revocation and pre-contractual liability: Vienna Convention.

Whereas in the Civil Code, as has been seen, the need to protect the offeree against the offeree's (broader) power of revocation is realised by making the offeree liable for the offeree's expenses and losses incurred formerly Art. 1328 of the Civil Code and, possibly, to compensation for negative interest, in the event of the application of the Vienna Convention (which as we have seen anticipates the time by which the offeror may revoke the proposal at the time of dispatch of acceptance by the offeree) the matter becomes not a little complicated.

Indeed, doctrine is not uniform as to whether the Vienna Convention regulates pre-contractual liability or not. There is, however, a prevailing orientation, which holds that the Convention does not regulate this.[21] On the other hand, there are, however, numerous commentators who consider that the Convention is nevertheless applicable to 'preliminary agreements', at least to the extent that such agreements provide for the manner in which the final contract is to be performed.[22]

In fact, in order to understand (or at least approach) these apparently conflicting orientations, it would first be necessary to differentiate the hypothesis of liability for breakdown of negotiations from the breach of specific contractual provisions regulated by the parties in a preliminary contract.

In fact, according to part of the doctrine, if the parties have not signed a proper preliminary contract and the issue concerns the mere breakdown of contract negotiationsthe issue would appear to be (indirectly) regulated by the Vienna Convention. In fact, since Articles 15 and 16 of the Convention, as we have seen, expressly deal with the question of the revocability of an offer, the fact that the Convention does not provide for any protection for the offeree leads us to believe that such a revocation does not confer on that party any right to claim damages,[23] resulting in the inapplicability of the civil law protections analysed above.

Less clear, however, is the case where the parties have signed a preliminary contract and one party defaults, since, as noted above, the Convention does not regulate the institution of pre-contractual liability.

It is certainly important to understand, at first analysis, whether the individual relationship is or is not regulated by the Convention. In fact, if one were to espouse the thesis that the Convention does not apply to any pre-contractual relationship, it would be common ground to argue that this issue is necessarily governed by the common law rules applicable to the existing relationship.[24]

Otherwise, if one were to follow the thesis of part of the doctrine,[25] which asserts that certain preliminary contracts are governed by the uniform law, it must be understood whether or not in the event of a breakdown of transactions or any breach of contract by one party during negotiations, the party suffering the harm can make use of the instruments recognised by the Convention, which concern, precisely, the breach of a contract of sale and certainly not of a preliminary contract. If this thesis were to be followed, the indemnifiable harm would therefore be (in fact) contractual in nature, with consequent greater protection than under civil law (which provides, as we have seen, for more limited compensation in the case of pre-contractual harm).

Certainly, this problem does not arise where the action seeks to recover damages for harm the object of which is excluded from the scope of Art. 2(a), Art. 4 or Art. 5. (e.g. damage caused during negotiations by fraudulent activity).

All these problems and doubts relating to the application and applicability of the Convention certainly entail greater uncertainty for the parties when concluding the contract than if only civil law were to be applied to the relationship; this element should certainly be taken into account, trying (compatibly with the difficulties that companies face daily in international trade) to regulate them as carefully as possible, not only the sales relationship, but also its negotiation.

[1] MASTROMATTEO, La vendita internazionale, Giappichelli Editore, 2013.

[2] With reference to the quantification of the price, the present article merely points out that the provision under consideration would seem to be difficult to integrate with that of Art. 55 of the Convention, which anticipates: "If the sale is validly concluded without the price of the goods sold having been expressly or impliedly fixed in the contract, or by a provision enabling it to be determined, the parties shall, unless otherwise provided, be deemed to have tacitly referred to the price usually charged at the time of the conclusion of the contract, in the trade concerned, for the same goods sold in similar circumstances." Indeed, if the fixing of the price is a condition for the completion of the sale, it is difficult to admit that one can speak of a validly concluded contract without this determination, at least implicitly, having taken place. Precisely for this reason, most decisions have refused to apply Art. 55 Oberlandesgericht Frankfurt a.M., Germany, 15 March 1996, Bundesgerichtshof, Germany, 23 July 1997, Landgericht Alsfeld, Germany, 12 May 1995, Kantonsgericht Freiburg, Switzerland, 11 October 2004. On this point see. UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods, 2016 Edition.

[3] Case law holds that a statement can only qualify as a contractual proposal when it manifests a unambiguous will to commit and not merely a willingness or a wish, Cass. Civ. no. 6922 of 1982; VESSICHELLI, Commentary on Art. 14, at New civ. comm. laws, 1989, p. 51.

[4] Cf. BENEDETTI, From contract to unilateral transaction, Milan, 1969, 95.

[5] RUBIN, Commentary on Art. 15, at New civ. comm. laws, 1989, p. 51.

[6] Art. 18, third paragraph: "If, however, by virtue of the offer, custom or usage established between the parties the offeree may indicate that it accepts the offer by performing an act relating, for example, to the dispatch of the goods or the payment of the price, without giving notice to the author of the offer, the acceptance will take effect at the time when that act is performed, provided that it is done within the time limits set forth in the preceding paragraph. "

[7] MASTROMATTEO, op. cit.

[8] FERRARI, sub Article 16, International Sale of Goods tome II, in Commentario del codice civile Scaiola-Branca, edited by Galgano, 2006.

[9] On this point, see Pluris online, Annotated Civil Code, Article 1329 of the Civil Code, Wolters Kluwer, 2021.

[10] On this point cf. Unicitral digest of Case Law, sub. art. 18, 2016 Edition.

[11] Cf. Civil cassation 2003, no. 3341, which states that it is the task of the court of merit to identify and value elements from which to deduce a tacit manifestation.

[12] BIANCA, op. cit.

[13] Cass. Civ. 2014 No. 10533.

[14] On this point, see BIANCA, Civil Law, The Contract, Giuffrè, 1987.

[15] Cass. Civ. 1952 no. 1729. CIAN - TRABUCCHI, Short Commentary to the Civil Code, sub. art. 1328, CEDAM, 2014.

[16] See Cass. Civ. 1786/2015; Cass. Civ..1051/2012; Cass. Civ. 11438/2004.

[17] Art. 1337 of the Civil Code "The parties, in the conduct of negotiations and in the formation of the contract, must behave in good faith'.

[18] Cf. BIANCA,

[19] Cass. Civ. 1999 no. 5830.

[20] See on this point Cass Civ. 24795/2008, Cass Civ. 1632/2000.

[21] DIMATTEO - International sales law. A global challenge, Cambridge, 2014.

[22] TOWER - Preliminary Agreements and CISG Contracts, at Drafting Contracts under the CISG, p. 191 ff., 2008.

[23] FERRARI - Kommentar zum Einheitlichen UN-Kaufrecht, Art. 5, 2009.

[24] On this point, it should be noted that under European law, Article 12 of the Rome II Regulation states that: "The law applicable to non-contractual obligations arising out of pre-contractual negotiations, whether or not the contract has actually been concluded, is the law that applies to the contract or that would have been applicable to the contract had it been concluded." Thus, while the problem of identifying the applicable law for culpa in contrahendo does not arise in the case of application of European law, the same certainly cannot be said in the case the contractual relationship is (or may be) subject to a regulation extra-EU.

[25] TORSELLO, op. cit.

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International trading and the importance of customs and traditions: Vienna Convention and Civil Code compared.

It is often overlooked that a contractual relationship is not solely governed by the text that the parties have (possibly) agreed upon and that the transaction must be interpreted on the basis of the conduct of the contracting parties before and after conclusion, as well as that the same may be supplemented by any customs and habits practised in the commercial sphere where the contracting parties operate.

The subject of the integration of the contract is, of course, regulated by both the Vienna Convention (CISG) and the Civil Code, with differences that are certainly not negligible; the choice of whether or not to apply the Convention to a given relationship has rather significant practical repercussions that are briefly analysed below.

1. Vienna Convention

Article 9 of the Vienna Convention states that:

"The parties are bound by the usages [practices] to which they have agreed and by the customs [usages] established between them.

Unless the parties have agreed otherwise, they shall be deemed to have tacitly referred in the contract and in its drafting to any usage of which they were or ought to have been aware and which, in international trade, is widely known and regularly observed by the parties in contracts of the same kind, in the trade concerned. "

According to this provision, the parties to an international sales contract are bound by both customs ("practices"), as well as to practices ("usages"), which the contracting parties have (expressly or implicitly)[1] established between them. Although the convention does not define the concepts of usages e practicesthey can be translated as follows:

"practices"with individual customs, i.e. commercial practice[2] established between the contracting parties in their previous contractual relations;[3]
"usages", with negotiated usages, or customs, understood as conduct normally practised in a certain commercial sphere, with the belief that it is binding conduct.

According to Art. 9 para. 1 of the CISCG, both the "practices", that the "usages" do not have a mere interpretative value, but must even be considered an integral part of the contractual relationship, albeit subject to certain limitations and conditions, which will be analysed below. Before doing so, for the sake of clarity, some "practices" that were deemed applicable between the parties:

the obligation of a seller to promptly deliver spare parts to the buyer, based on the practice that had been established between them;[4]
it was held that a seller could not invoke the rule in Article 18 CISG that silence does not amount to acceptance, given that the parties had established an internal practice whereby the seller executed the buyer's orders without the need for express acceptance;[5]
in another case, also for the purpose of reporting defects, it was decided that the purchaser was bound to a certain manner of examining the delivered goods on the basis of a practice that had been established over time.

But when are such practices?

First of all, it is necessary to understand whether a real ''relationship'' has actually been established between the parties.practice" and, in order to do so, it is necessary that the particles have been conducted with such frequency and over such a period of time as to cause the party invoking them to believe and presume in good faith that they would be perpetuated over time.[6]

Once this 'preliminary' element has been ascertained, it is indeed necessary to verify whether there are any contractual provisions between the parties that exclude their applicability, or whether there are contractual agreements that are in fact contrary to the practice allegedly established between the contracting parties.

In fact, although according to a jurisprudential orientation[7] usages and customs would even derogate from the provisions of the Convention, if the parties have excluded their application, or have inserted clauses that in fact conflict with them, negotiated agreements would prevail over usages. This principle follows from Article 6 of the CISG, according to which the will expressed by the contracting parties is the primary source of the rights and obligations arising from contracts concluded under the CISG.[8]

Thereafter, the onus will be on the party claiming its existence to prove the required elements,[9] with the consequence that in the event of failure to do so, custom and practice will not be binding between the parties.

Once its existence has been proven under the Convention, its legitimacy must be assessed according to the domestic law applicable in each case, so that the validity of usages does not fall within the scope of the Convention, which only regulates the criteria for their applicability.[10]

As for commercial uses (usages), which, on the other hand, are those customs that are normally practised in a certain mercantile environment, the parties are bound to them, pursuant to Art. 9(2), even in the absence of an express agreement transposing them, provided that they "were or should have been aware'..

As a general rule, international trade usages should only be considered binding if they are widely known to the parties, or if they are regularly observed in international trade.[11] It should also be noted that for a usage to be binding it does not have to be international, but local usages used e.g. in stock exchanges, trade fairs, warehouses, may also be applicable to the relationship, provided that they are also regularly applied in transactions involving foreign contracting parties.[12]

One decision was even held that the usages are automatically included in any agreement governed by the Convention unless expressly excluded by the parties.[13]

Also for the usages, the principle applies that they (if applicable) derogate from the provisions of the Convention that differ therefrom, but not from conflicting contractual agreements, contractual autonomy being the primary source of the rights and obligations of the parties.

As to the burden of proof, it is held that there is no difference in the allocation of the burden of proof under Art. 9(1) and (2), since the party claiming the existence of usages or practices binding, it must nevertheless prove the elements required by it.[14]

2. Civil Code

Certainly less linear and decidedly more complex is the civil law regulation of usages and customs, which are categorised into:[15]

Regulatory usesgoverned by arts. 1 and 8 of the lexis. These are all the unwritten rules that a given social environment consistently observes over time as legally binding rules.[16] Such usages apply to matters not regulated by laws or regulations, or to the extent to which they are referred to therein.
Contractual Uses, negotiations or usage clauses, as referred to in Art. 1340 of the Civil Code. To be understood as practices as commonly and consistently observed in contractual transactions in a given place or branch of trade. Such usages may be equated with "usages' referred to in the Vienna Convention.
Individual uses, are the practice established in relations between certain parties and relevant to the interpretation of the contract, pursuant to Art. 1362(2) of the Civil Code (assimilated to the "practices"of the CISC).

While understanding in detail the distinction between regulatory uses and contracts would certainly require a more careful and thorough examination, but for the purposes of the present article, it may be simplified by stating that the statutory usages are those applicable whenever the law refers to them (e.g. in the matter of sale, Art. 1498, para. 2 of the Civil Code on the manner of payment of the price), or when there are matters not regulated by the law itself, in which case they play an integrative function (usages praeter legem).

The negotiated uses on the other hand, are generalised business practices that are intended to be included in the contract if it does not appear that they were not intended by the parties (Art. 1340 Civil Code).[17] Such usages may, for instance, provide for the variability of the quantity or quality of the goods within certain tolerance limits, or the obligation to return the containers of the goods bought and sold, or the possible acknowledgement of a performance guarantee; in the international sphere, the uniform rules and usages of the International Chamber of Commerce in the field of documentary credits have been regarded as negotiating usages.[18]

Moreover, unlike statutory usages, negotiated (or contractual) usages apply without the need for a statutory reference: the law contains, in fact, in Art. 1374 of the Civil Code (integration of the contract) a general reference to usages as a source of integration of the contract, since the parties are bound by what is determined by the agreement and by all the consequences arising therefrom according to the law or, failing that, according to usages.

A first and important difference is related to the fact that negotiated uses (as opposed to usages which are applicable whenever the same were known or knowable to the parties at the time of the conclusion of the contract) in civil law the jurisprudence is not in agreement as to whether they can be deemed to be incorporated into the contract only by virtue of an express or tacit manifestation of the parties,[19] or whether the uses oblige the parties even if ignored by them.[20] It may, however, be reasonably argued that such usages are also effective in derogation of (obviously non-mandatory) statutory provisions, but that they must be excluded in the event of a contrary, agreed will of the parties, even if tacitly expressed.[21]

Negotiated uses must also be distinguished from individual usesi.e. the practice established in relations between certain contracting parties (the practices of the CISG).

Very important to note that, contrary to the practices, the internal practice of the contracting parties is only relevant for the interpretation of the contract, as the overall conduct of the parties (Art. 1362 para. 2 CC),[22] but does not also incorporate its contents under Article 1340 and Article 1374 of the Civil Code.[23]

It follows, therefore, that unlike Art. 9 of the CISC, the bargaining practice established between the parties cannot have the value of an actual contractual clause forming an integral part of the relationship, but can only be used as an element to interpret the contract. Difference, far from negligible.

One way of nevertheless attempting to pursue the same result, i.e. to integrate a given individual practice within the relationship, would be to have recourse to the principle of equity, referred to in Article 1374 of the Civil Code, which provides as follows:

"The contract binds the parties not only to what is expressed therein, but also to all the consequences arising therefrom according to law, or, failing that, according to usage and equity the parties shall be bound by it. uses and theequity. "

Using this principle, coupled with the principle of performance in good faith of the contract under Art. 1375 of the Civil Code, one could possibly attempt to argue that the continued and repeated conduct of one party has engendered in the other the expectation that the same would be repeated.

Certainly, such a solution would still be much more complex and difficult to implement than if the Vienna Convention were to apply to the relationship, given that the provisions of Article 9 are certainly much clearer and easier to interpret in this respect.

[1] Oberster Gerichsthoff 21 March 2000.

[2] See DE FRANCHIS, Dizionario Giuridico Itailano-Inglese, Giuffrè Editore,

[3] BUSANI, The International Sale and Purchase Agreement, p. 97 et seq., 2015, Giappichelli

[4] Court of Arbitration of the International Chamber of Commerce, France, December 1997 No. 8817,

[5] Cour d'appel de Paris, France, 10 September 2003

[6] UNCITRAL: Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods-2016 UNITED NATIONS 2016 Edition.

[7] CLOUT case no. 313, Cour d'appel de Grenoble, France, 21.10.1999.

[8] See Hof van Beroep Antwerpen (Belgium), 24 April 2006; BUSANI, op. cit.

[9] Oberster Gerichtshof, Austria, 21 March 2000.

[10] Oberster Gerichtshof, Austria, 22 October 2001.

[11] UNCITRAL: Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods-2016 UNITED NATIONS 2016 Edition.

[12] Oberlandesgericht Graz, Austria, 9 November 1995.

[13] U.S. District Court, Southern District Court of New York, 10 May 2002.

[14] UNICITRA Digest. Op. cit.

[15] For the sake of simplicity, no further categories, such as interpretative uses and business uses, are included in this article.

[16] BIANCA, Civil Law, The Contract, 1987, Giuffrè.

[17] BIANCA, op. cit.

[18] Cass. Civ. 2009, no. 21833

[19] Cass. Civ. 2010 no. 8342.

[20] Cass. Civ. 2007 no. 5135.

[21] Cass. Civ. 2007 no. 5135; Cass. Civ. 1988 no. 76.

[22] CIAN - TRABUCCHI, Commentary on the Civil Code, Art. 1340, CEDAM.

[23] Cass. Civ. 1988 no. 3220.

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General conditions of contract in national and international online sales. What if the Vienna Convention applies?

The regulation of general terms and conditions in e-commerce involves not a few insignificant complexities.

If on the one hand it seems easy enough from a practical point of view to ensure that the general terms and conditions of sale are knowable by means of certain expedients, it is certainly more complex and less easy to ensure that vexatious clauses are expressly approved in writing in accordance with the dictates of the second paragraph of Art. 1341 of the Civil Code.

The notion of general terms and conditions of contract ("GTC") is included in our legal system in Art. 1341 of the Civil Code. General Terms and Conditions of Contract are to be understood as a set of contractual clauses, which are by their nature generalitiesas they are intended to apply to all contracts of a given series, and of one-sidednessas they are only prepared by a contractor, the so-called predisponent.

The formula general terms and conditions thus expresses the practical phenomenon of the prior and unilateral formulation of a uniform negotiating content intended to be used to regulate an indefinite series of relationships belonging to the predisposer.[1]

1) When are they valid?

Art. 1341 of the Civil Code lays down, in relation to the content of general terms and conditions, two different requirements of effectiveness. It provides, in para. (1), for the general requirement of effectiveness of knowledge or cognizability and, in para. (2), for the particular requirement of effectiveness of specific approval in writing in the case of so-called vexatious or so-called onerous clauses.

1.1. Knowability and knowledge.

Knowability consists in the possibility for the adherent to acquire knowledge through the use of ordinary diligence. Therefore, for all contracts that are concluded by means of uniform contractual terms and conditions prepared by the contracting party, the favourable principle dictated by the first paragraph of Art. 1341 of the Civil Code applies, according to which the actual content of such clauses is enforceable against the other contracting party even if the latter, without having knowledge of them, should nevertheless have known them by using ordinary diligence.[2]

This, however, presupposes an activity on the part of the predisposing party that is appropriate to permit knowledge, taking into account the diligence that is normal to expect of the average adherent with reference to the type of economic transaction performed.[3]

1.2. Written proof and unfair terms.

Para. (2) regulates the specific situation in which the terms themselves are vexatious and provides that they, in order to be binding on the other contracting party, must be approved particularly in writing, in the knowledge that an objectively onerous obligation is being undertaken.[4] The list of unfair terms (which is exhaustive and not subject to extensive interpretation)[5] is specifically concerned with:

limitations of liability (Art. 1229);
power to withdraw from the contract (Art. 1373) or to suspend its performance (Art. 1461), or impose forfeitures on the other contracting party (Art. 2965);
limitations on the right to raise objections (Art. 1462);
Restrictions on freedom of contract in relations with third parties (arts. 1379, 1566, 2596), tacit extension or renewal of the contract (arts. 1597, 1899), arbitration clauses (art. 808 of the Code of Civil Procedure) or exceptions to the jurisdiction of the courts (arts. 1370; 6, 28, 29, 30, 413 of the Code of Civil Procedure).

Since one of the characteristics of the GTC is their unilateral nature, the need for written approval of unfair terms is excluded whenever the conclusion of the contract was preceded by a negotiation which specifically addressed the terms that would otherwise require an independent signature, whereas the signature remains indispensable for terms with vexatious content to which the party has adhered without any discussion.[6]

As to the manner of approval, it is generally held that there is no need for a specific signature for each vexatious term and that the requirement of specific approval in writing is also fulfilled in the case of numerical references to terms provided that they are accompanied by an indication, albeit summary, of their content.[7]

2) 1341 of the Civil Code and electronic commerce.

Applying the principles summarised above to the electronic marketplace entails not a few insignificant complexities: in particular, the double signature of vexatious clauses in telematic contracts is a very complex problem that has been debated both in doctrine and in jurisprudence.

If in a sale onlineOn the one hand, it seems quite easily solvable from a practical point of view to ensure the cognizability under Art. 1341 para. 1 of the Civil Code of the general terms and conditions of the contract by means of certain expedients (e.g. the insertion of link on the site or within the order, which refer to the GTC), it is certainly more complex and less straightforward to ensure that vexatious clauses are expressly approved in writing in accordance with the dictates of the second paragraph of the aforementioned article.

The solution that is normally adopted on e-commerce is to set up two form separate, one of which is intended for the approval of the general terms and conditions as a whole (by ticking a box and accepting with a "click"so-called "click-wrapping") and one of the vexatious clauses, which are then separately accepted (albeit by means of a "click").

Jurisprudence has had several occasions to pronounce on whether acceptance by click complies with the formal requirements imposed by Art. 1341(2) of the Civil Code, recording for the time being quite opposing positions.

There is a ruling by the Justice of the Peace of Trapani stating that:

"checking a box by clicking cannot be equated with the double signature requirement of Art. 1341 of the Civil Code, since it cannot be equated with the signature of the contracting party who has not prepared the text of the agreement."[8]

This guidance echoed a somewhat less recent decision of the Court of Catanzaro in 2012,[9] in which the plaintiff had complained of the vexatious nature of the clause contained in the terms of use of the principal's (eBay's) website, which allowed the company to suspend or delete at any time, even without justification, theaccount with which the seller could use the platform.

The Court had upheld the application, finding the abusive nature of the clause and noting that eBay had not set up a valid double acceptance mechanism pursuant to Art. 1341(2) of the Civil Code, through specific approval of the adherent of the GTC by means of digital signaturesince only the latter would have guaranteed the actual acceptance of the provision and the identifiability of the subscriber.

In the writer's opinion, given that the text of Art. 1341(2) of the Civil Code does not require the specific signing of the unfair terms, but rather their approval, the digital signature should not be considered a necessary element to ensure the fulfilment of this requirement, but rather to overcome a different (and further) obstacle, i.e. relating to the proof of the traceability of the signing of an electronic contract to a well-identified person.[11]

To this end, given that such 'identification' can also be carried out in a more streamlined manner and more in line with the business needs of both parties, it could be considered that the validity of the acceptance of the general terms and conditions by click and their traceability to a particular party could be more 'strengthened' if this is collected, for instance, following a login with insertion of user name e password by the member.[12]

It should be noted, however, that more recently, in 2018, the Court of Naples, in a similar case (still concerning eBay's terms of use), instead adopted a very different orientation, considering it unnecessary to introduce the requirement of a digital signature to accept the vexatious clauses, since this solution would have led to:

"transforming all telematic contracts into binding form contracts as a matter of pretext, requiring for their conclusion the use of a sophisticated instrument, not yet massively widespread among the public, and thus effectively paralysing the development at national level of an entire sector of trade that is becoming increasingly important at planetary level".

Again in this sense, we read in a decision of the Justice of the Peace of Partanna,[10] which had held that the requirement of written form under Article 1341(2) of the Civil Code was sufficient through

"a double assent, by pressing the appropriate button: one of adhesion and the other of approval of the so-called vexatious clauses."

3) 1341 Civil Code and international trade

3.1. Waiver of Jurisdiction.

After having, albeit very briefly, analysed the main issues concerning the limits of the usability of the GTC in the context of e-commerce, we go on to examine the possibility of waiving jurisdiction in favour of the judicial authority of a Member State by simply inserting an extension clause in the general terms and conditions, to be submitted to the adherent for acceptance by a simple click.

Article 23 of the Regulation Brussels I bisprovides that the agreement conferring jurisdiction must be concluded:

"In writing or orally with written confirmation,
or in a form permitted by the practices established between the parties, or
in international trade, in a form permitted by a usage which the parties knew or ought to have known [...].

The written form includes any electronic communication that allows for a durable record of the clause conferring jurisdiction"

The European Court of Justice[13] was asked to answer whether the click-through procedure, by which a buyer has access to the general terms and conditions of sale appearing on an internet site by clicking on a hyperlink opening a window, fulfils the requirements of Article 23(2) of the Brussels I Regulation.

The case concerned a car dealer established in Germany who, after having purchased on the defendant's (a Belgian-based company's) website, sued the seller in the German court of Krefeld. The seller entered an appearance arguing that the German courts did not have jurisdiction, since Article 7 of the GTC contained a clause conferring jurisdiction in favour of the court in Leuven (Belgium).

The European Court of Justice confirmed the jurisdiction of the Leuven court, holding that the procedure of acceptance by clicking on the general terms and conditions of a contract of sale concluded electronically, which contain a clause derogating from jurisdiction, constitutes an acceptance in writing of those terms and conditions, since they are electronic communications that do not open automatically upon registration on the website, can be saved or printed before the conclusion of the contract and therefore constitutes an electronic communication within the meaning of Article 23(2) of the Regulation.

This issue was also recently submitted to the United Sections of the Supreme Court,[14] which have held that an extension of jurisdiction clause (pursuant to Article 23 of the Regulation) is valid even if it is contained in the general terms and conditions of a contract, expressly referred to in the purchase order signed by the customer and accessible from the web address referred to therein, and that prior to the conclusion of the contract, the text of those terms and conditions can be printed and saved.

The waiver of jurisdiction, therefore, does not require the specific written approval of the adherent, pursuant to Article 1341(2) of the Civil Code, since it does not fall within the vexatious clauses exhaustively listed therein. It should be noted that, according to a well-established jurisprudential orientation,[16] Article 1341 of the Civil Code dictates a criterion of jurisdiction and that this does not affect the different criteria of jurisdiction applicable to international disputes. The United Sections themselves[15] have recently pronounced themselves on this point, stating that:

"The requirement of written form, prescribed by Art. 23 of the Regulation [...], is fulfilled if the clause itself appears in the general terms and conditions of the contract, if the contractual document signed by both parties contains an express reference to the aforesaid general terms and conditions bearing that clause, without the need for a specific approval in writing pursuant to Art. 1341 of the Civil Code.

3.2. General Terms and Conditions and the Vienna Convention.

In the event that the general terms and conditions of the contract regulate international purchase and sale relations, the Vienna Convention (if any) is applicable,[17] the question arises whether or not the double signature requirement of Article 1341 of the Civil Code can be invoked.

Indeed, the Vienna Convention, like any other uniform contract law convention, does not regulate all questions that may arise in connection with the contracts it regulates; this is of no little importance if one considers that the questions that are not regulated will have to be resolved on the basis of the law applicable to the contractual relationship.[18]

On the contrary, all matters that are expressly regulated by the Convention will prevail over the rules of domestic law, which will be derogated from by it; in order to understand whether Art. 1341 of the Civil Code can be invoked in such a case, it is essential to understand whether or not the GTC are governed by such rules of uniform law.

According to more authoritative doctrine,[19] although the general terms and conditions of contract are not expressly regulated by the Vienna Convention, since in Part II thereof the "formation of the contract" is exhaustively regulated. it will be necessary to refer to the rules of the Vienna Convention in order to understand what formal requirements the GTC must comply with.

On the assumption that Article 11 of the Vienna Convention establishes the principle of the freedom of formpart of the doctrine[20] and case law[21] therefore held that in the event of the application of the Convention, the requirement under Article 1341 of the Civil Code that any vexatious clause drafted by one of the contracting parties be subject to specific written approval must be regarded as waived.

Following this principle and applying it to online sales, it can therefore be considered that, in the event of the application of the Vienna Convention, unfair terms included in general terms and conditions would not require specific approval, and could therefore also be accepted by 'click'; it would still be the duty of the originator (pursuant to Art. 9) to ensure that the adherent has been put in a position to become aware of them, by means of a 'proactive' attitude by virtue of a general obligation of good faith and commercial cooperation.[22]

[1] Bianca, Civil Law, Giuffrè, Third Edition, p. 340.

[2] Court Milan 18.6.2009.

[3] Bianca, The General Conditions of Contract, 1979, p. 2.

[4] Cass. civ. 2003, no. 1833.

[5] Cass. Civ. 2013, no. 14038.

[6] Cass. civ. 2020, no. 8268.

[7] Trib. Rimini, 4.4.2020; Cass. Civ. 2018, no. 17939.

[8] Giudice di pace Trapani, 14.10.2019, with note by Quarta La conclusione del contratto di albergo per via telematica: pagamento anticipato e revoca della prenotazione, Danno e responsabilità, 2020, 2; Giudice di pace Milano 28.01.2019, Tribunale di Catanzaro 30.4.2012, in Res. Civ. e prev., 2013, 2015 ff.

[9] Trib. Catanzaro 30.4.2012, in Contratti, 2013, 1, 41, with a note by V. Pandolfini, Contratto on line e clausole vessatorie: quale firma (elettronica)?

[10] Justice of the Peace Partanna 1.2.2002.

[11] The Court of Catanzaro itself argues that the contract is invalid because only the digital signature would have guaranteed the actual acceptance of the provision and the identifiability of the signatory.

[12] On this subject, see also Cerdonio Chiaramonte, Specific written approval of unfair contract terms, NGCC, No. 3, 2018.

[13] Court of Justice of the European Union, 21.5.2015, No. 322/14.

[14] Cass. Civ. Sec. Un. 2017, no. 21622.

[15] Cass. Civ. Sec. Un. 2020, no. 1871.

[16] On this point see Cass. Civ. Sec. Un. 1982, no. 6190, Cass. Civ. 2003, no. 17209, Cass. Civ. 2010, no. 14703.

[17] Article 1 of the Convention that it "shall apply to contracts of sale of goods between parties having their place of business in different States: a ) where those States are Contracting States; or b ) where the rules of private international law refer to the application of the law of a Contracting State."

[18] According to Italian case-law, issues relating to e.g. representation and prescription are not governed by the Convention (Trib. Padua 25.2.2004; Trib. Vigevano 12.7.2000).

[19] Ferrari, International Sale of Goods,

[20] Bortolotti F. ''Handbook of International Commercial Law'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General Terms and Conditions of Contract in Contracts for the International Sale of Goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981).

[21] Trib. Rovereto 24.8.2006; Cass. Civ. 16.5.2007, no. 11226.

[22] On this subject, Ferrari, General Terms and Conditions in Contracts for the International Sale of Goods, Obbligazioni e contratti, 2007, 308.

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What are the seller/manufacturer's warranties for material defects in the thing sold?

The discipline of the warranty for material (and not legal) defects is regulated in arts. 1490 et seq. of the Civil Code. Specifically, it is subdivided as follows: arts. 1490-1496 regulate the warranty for defects of the thing, while art. 1497 of the Civil Code regulates the warranty for lack of quality.

Italian jurisprudence has developed, alongside these guarantees, a further one known as 'aliud pro alio", which occurs whenever the material defect of the thing sold is so serious as to render the good completely incapable of performing the function for which it was purchased.

As far as possible, given the complexity and articulation of the issue, an attempt is made below to distinguish the various disciplines of guarantees known to the Italian legal system.

(a) Warranty for defects (Arts. 1490-1496 Civil Code)

This warranty is owed by the seller only if at the time of the conclusion of the contract the buyer was unaware of the existence of the defects, or if such ignorance is not culpable, since the defects were not readily recognisable (Art. 1491 of the Civil Code).[1]

As to its content, it confers on the buyer the possibility of acting to request, at his discretion, the termination of the contract or the reduction of the price (Art. 1492 Civil Code), in addition in any event to compensation (Art. 1494 Civil Code). Excluded from this guarantee is, on the other hand, an action for exact performance, i.e. an action whereby the seller is requested to eliminate defects by repairing the goods sold.[2]

It is important to emphasise that the choice between an action for reduction of price and an action for termination of the contract is irrevocable once it has been made by a court application (Art. 1492(2) of the Civil Code), since a party may not even bring an action requesting the reduction of the price as a subordinate claim to the application for termination of the contract, or vice versa.[3]

Finally, the parties are entitled to exclude this warranty for defects, with the only limitation being the case where the defects are concealed in bad faith by the seller. Particular attention must be given to warranty disclaimers (the discussion of which alone would require a much more extensive study), which fall under the special rules of Art. 1341 of the Civil Code,[4] which regulates so-called 'unfair terms' and provides for the obligation to expressly sign the clause with a double signature, failing which the clause is null and void.[5]

(b) Guarantees for lack of quality pursuant to Article 1497 of the Civil Code.

Whereas defect consists in an imperfection/defect of the good, lack of quality occurs whenever the thing (even though it has no manufacturing/forming/preservation defects) is ascribable to one species rather than another, even within the same genus.[6]

The discipline of this warranty is particular, since on the one hand Art. 1497 para. 1 of the Civil Code makes it subject to the terms of complaint and prescription provided for in Art. 1495 of the Civil Code (and which will be dealt with in section X below), but on the other hand it differs from them, since Art. 1497 para. 2 of the Civil Code provides that termination of the contract is allowed ".according to the general provisions on termination for non-performance".

Although case law over time has always been oscillating as to whether the presence of defects and the lack of quality should be subject to the same discipline or not,[7] the most recent judgments, seem to hold that the action under Art. 1497 of the Civil Code differs from the action under warranty for defects in that in the former:

the buyer may exercise an action for exact performance (pursuant to Art. 1453 of the Civil Code);
the buyer could not claim a reduction of the price, as this is not provided for by the general rules on non-performance.[8]

(c) Aliud pro alio

One has aliud pro aliowhen the thing sold belongs to a kind entirely different from that of the thing delivered, or has defects that prevent it from performing its natural function or the concrete function assumed by the parties to be essential.[9] Consider, for example, the transfer of a work of art falsely attributed to an artist. This hypothesis entitles the buyer to request termination of the contract for non-performance by the seller, pursuant to Art. 1453;[10] or to the sale of houses that are uninhabitable or otherwise lack the habitability requirements (C. 8880/2000) or of cars with forged chassis numbers (C. 7561/2006).

In case of aliud pro aliothe buyer is not subject to any duty to give notice, but has the possibility of either demanding performance or bringing an action for termination, and according to Art. 1453 the seller will be liable only if at fault, in accordance with the general principles governing non-performance and, therefore, subject to the ordinary limitation period of ten years.[11]

(d) Damages

In the case of material defects of the thing, the buyer is entitled not only to claim termination of the contract or reduction of the price, but also compensation for damages. Art. 1494 of the Civil Code also provides for a presumption of fault on the part of the seller, who is required to prove that he was blamelessly unaware of the existence of the defects of the thing.

Consistent case law holds that the purchaser must be placed in the economic situation equivalent to that in which he would have found himself if the thing had been free from defects, but not that in which he would have found himself if he had not concluded the contract or if he had concluded it at a lower price.[12] Moreover, the purchaser may also claim compensation for the expenses incurred in remedying the defects, irrespective of the actual elimination of the defects.[13]

e) Application of the Vienna Convention and the Consumer Code

It should be noted that the distinction between defects, lack of quality, defective functioning, aliud pro alio and ordinary liability has been superseded by the Vienna Convention, which provides, in Articles 35-41, homogeneous means of protection of the buyer for all hypotheses of non-conformity of the thing delivered with respect to the thing agreed upon.

Art. 35 lays down two criteria for assessing whether the goods delivered are free from defects, firstly that of conformity with what was agreed upon between the parties and, in the event that such an agreement is lacking, a series of subsidiary criteria.[14]

As to the remedies offered by the Convention, they are: the request for fulfilment (Art. 46)[15]termination of the contract (Art. 47),[16] price reduction (Art. 50)[17] and damages (Art. 45).[18]

Directive No. 1999/44/EC of 25.5.1999, implemented by Legislative Decree No. 24 of 2.2.2002 (which introduced Articles 1519 bis-1519 novies into the Civil Code) and relating to the sale of consumer goods, moved in the same direction. The new discipline provides, at the professional seller's expense, a unitary guarantee for all hypotheses of 'lack of conformity' of the goods with the contract, legitimising the consumer to request, at his choice, the repair of the goods or the termination of the contract.

___________________________

[1] Recognition of the defect is excluded if the sale was concluded at a distance, i.e. if the goods were packaged or packaged

[2] This exemption applies, of course, to sales between professionals, since the new consumer code, which was introduced in Italy with the transposition of Directive 25.5.1999, no. 1999/44/EC, implemented by Legislative Decree 2.2.2002, no. 24.

[3] Cass. Civ. 2015, no. 17138; Cass. Civ. 2004, no. 1434.

[4] Article 1341. "General terms and conditions prepared by one of the parties are effective vis-à-vis the other, if at the time of the conclusion of the contract the latter knew or ought to have known of them using ordinary diligence (1370, 2211).

In any event, conditions which establish, in favour of the one who has prepared them, limitations of liability, (1229), the right to withdraw from the contract (1373) or to suspend its performance, or which establish in favour of the other contracting party forfeitures (2964 et seq, or sanction forfeitures (2964 et seq.), limitations on the ability to raise objections (1462), restrictions on freedom of contract in relations with third parties (1379, 2557, 2596), tacit extension or renewal of the contract, arbitration clauses (Code of Civil Procedure 808) or arbitration clauses (Cod. Civil Procedure Code 808) or exceptions (Civil Procedure Code 6) to the jurisdiction of the courts'.

[5] According to authoritative doctrine (Bortolotti F. ''Manuale di diritto commerciale internazionale'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General Conditions of Contract in Contracts for the International Sale of Goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981) and jurisprudence (Civil Cassation 2007, no. 1126) maintain that the double signature requirement of Art. 1341 of the Civil Code cannot be invoked and is therefore derogated from in the event of the application of the Vienna Convention. Contra minority doctrine (Pischedda P. "The evolution of export credit insurance" IPSOA, 2007).

[6] With reference to the qualities that the goods bought and sold must have, this is determined in the Italian guidelines, by the criterion of 'average quality', which operates (exclusively) in the sale of general goods. This criterion requires that the individual qualities exist to that ordinary extent which gives the goods an average value (Art. 1178 of the Civil Code).

[7] Cass. Civ. 1978 nr. 5361; Cass. Civ. 1978 nr. 206.

[8] Cass. Civ. 2000, no. 639.

[9] On the subject of the distinction between vice and aluid pro alio, the Supreme Court of Cassation recently intervened stating that there is a redhibitory vice or lack of essential qualities of the thing delivered if it presents imperfections that make it unsuitable for the use for which it should be intended or significantly diminish its value, or if it belongs to a different type or species other than that agreed upon; on the other hand, there is a delivery of aliud pro alio, which gives rise to the contractual action for termination or performance pursuant to Art. 1453, freed from the terms of forfeiture and prescription, where the goods delivered are completely different from those agreed upon, inasmuch as belonging to a different kind, they prove to be functionally wholly incapable of fulfilling the economic-social purpose of the res promised and, therefore, of providing the required utility. C. 5202/2007; C. 686/2006; C. 14586/2004; C. 18757/2004; C. 13925/2002; C. 5153/2002; C. 2659/2001; C. 10188/2000; C. 2712/1999; C. 4899/1998; C. 1038/1998; C. 844/1997; C. 244/1997; C. 5963/1996; C. 593/1995; C. 8537/1994; C. 1866/1992; C. 13268/1991; A. Rome 29.5.2008.

[10] Cass. Civ. 2008 nr. 17995.

[11] Cass. Civ. 2016, no. 2313.

[12] Cass. Civ. 2000, no. 7718; Cass. Civ. 1995, no. 1153.

[13] Cass. Civ. 1990, no. 8336.

[14] Art. 35 second paragraph 'Unless the parties agree otherwise, goods are in conformity with the contract only if: (a) they are fit for the purposes for which goods of the same kind would ordinarily be used; (b) they are fit for any special purpose expressly or impliedly brought to the knowledge of the seller at the time of the conclusion of the contract, unless it appears from the circumstances that the buyer did not rely on the seller's skill or judgement or that it was unreasonable for the seller to do so (c) possess the qualities of goods which the seller has presented to the buyer as a sample or model; (d) are packaged or packaged according to the usual criteria for goods of the same kind, or, in the absence of a usual criterion, in a manner suitable to preserve and protect them."

[15] Action available, provided that it has not resorted to an incompatible remedy. It may also require replacement of the goods if there is a fundamental non-performance under Art. 25. Reparation may be claimed instead where it does not appear unreasonable having regard to all the circumstances. See on this point Bortolotti, Il contratto di vendita internazionale, CEDAM, 2012, p. 260.

[16] Termination of the contract and consequent return of the services rendered may only be required in the event of essential non-performance or in the event of non-delivery of the goods within a reasonable additional period set by the purchaser pursuant to Art. 47.

[17] Such a claim may not be advanced if the seller remedies the defect or if the buyer rejects the seller's performance.

[18] The harm consists of the loss sustained by reason of the non-performance and the loss of profit. In any event, the recoverable harm cannot exceed the loss which the seller had foreseen or ought to have foreseen at the time of the conclusion of the contract (Art. 74), the buyer having in any event to take reasonable steps to limit the harm, the non-performing party being entitled to reduce the amount of damages by the amount of the loss which it could have avoided (Art. 77).

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Contract of sale or contract of sale? ...and what if the Vienna Convention applies?

Under Italian law, for the purposes of differentiating between a contract and a sale (of a future thing), it is a general principle that prevalence or otherwise of work over the supply of matter. This means that, in principle, there is a contract of contract and not of sale whenever the performance of the subject matter constitutes a mere means for the production of the work and the work is the essential purpose of the transaction.

1. Difference between contract of sale and applato.

In the case of the sale of a future thing, i.e. whenever the object of the transaction is a good that has yet to be realised, an issue of great practical relevance and considerable legal complexity may arise as to whether the contract can be identified as a sale or, conversely, as a contract.

Under Italian law, for the purposes of differentiating between a contract of contract and a contract of sale (of a future thing), it is a general principle that the prevalence or otherwise of work over the supply of matter. This means that, in principle, there is a contract of contract and not of sale whenever the performance of the subject matter constitutes a mere means for the production of the work and the work is the essential purpose of the transaction.

Consider the classic example where the object of the transaction is a good that is part of the ordinary production of a business, but to which the principal requests that certain modifications be made. In such cases, according to case law, you will have contractedwhenever such changes, they consist not of marginal adjustments and secondary aimed at adapting them to the specific needs of the recipient of the service, but are such as to give rise to a new good, different from that of normal production. Italian jurisprudence focuses, in particular, not so much on the amount of work required to make such changes, but rather on the type of changes that have actually been made to the product. [1]

Moreover, should the contract provide for the commissioning and/or installation of the good itselfItalian jurisprudence makes a further distinction: a contract of sale (with an attached obligation of installation) is to be considered a contract of sale if

"the supply and, where appropriate, also the installation if the subcontractor of the works is the same manufacturer or usual trader of the products and materials in question, unless, of course, the contractual clauses oblige the subcontractor of the said works to carry out a quid novi with respect to the normal production series [...].

Where, on the other hand, the contractor is neither the manufacturer nor the reseller of the goods to be installed or put in place, the activity of installing a good performed by the service provider, being autonomous from that of production and sale, identifies or refers to a contract of contract, since the subject matter is considered to be the instrument for the performance of a work or the rendering of a service."[2]

2. What if the Vienna Convention applies?

A different approach occurs, on the other hand, in the event that the Vienna Conventionon the International Sale of Goods, 1980.
This Convention applies to the relationship whenever the subject matter of the contract is the sale between parties having their place of business in different states; specifically, Art. 1 of the Convention provides that it applies:

"when these States are Contracting States; or
"when the rules of private international law refer to the application of the law of a Contracting State."

Read also - Other articles on the Vienna Convention.

Of course, even in the case of the application of the Vienna Convention, the question still arises as to the identification of the contractual relationship and, specifically, whether the relationship can be identified as a sale (with the consequent application of the Convention itself), or whether it is a contract.

On this point, the Convention itself dictates interpretative principleswhich allow the parties to identify what is to be considered a 'sale'. L'Article 3(1) of the Conventionand, includes as a contract of sale, also

"[...] contracts for the supply of goods to be manufactured or produced shall be regarded as sales unless the party ordering them is to supply an essential part of the materials necessary for such manufacture or production."

Furthermore, the second paragraph of the aforementioned article states that:

"This Convention does not apply to contracts in which the predominant part of the obligation of the party supplying the goods consists in the provision of labour or other services."

This article also extends to the scope of the Convention contracts for which the seller, in addition to delivery of the thing and transfer of ownership, it also undertakes to offer labour or other servicesprovided that such services do not constitute the "preponderant part"(in English 'preponderant part'), of the seller's obligations.

In order to understand whether the contribution of labour/services is "predominant", a comparison must be made as to the economic value of the services offered and the value of the tangible component of the goods themselves,[3] as if they constituted two separate and distinct contracts.[4] Thus, where the obligation for the provision of labour or services exceeds 50 per cent of the seller's obligations, the Convention does not apply.[5] Some courts require that the value of the service obligation "clearly" exceed that of the goods.[6]

What essentially distinguishes the two approaches, is that the Italian Courts, tend to give less weight to the relationship between the economic value of the material and the services connected to it: the difference between a contract and a contract of sale, consists mainly in the obligation that the entrepreneur has undertaken, i.e. to identify whether he has undertaken to supply a product that is part of his normal production activity, or whether it is necessary to make substantial modifications to the (line) product, such as to give rise to a product that is different in its essence from the one normally produced by the supplier.

[1] Cass. Civ. 2001 nr. 6925; Cas. Civ. 1994 nr. 7697.

[2] Cass. Civ. 2014, no. 872.

[3] Obergericht Aargau, Switzerland, 3 March 2009; Bundesgerichtshof, 9 June 2008; Court of Arbitration of the International Chamber of Commerce, 2000.

[4] Kantonsgericht Zug, Switzerland, 14 December 2009

[5] Kantonsgericht Zug, Switzerland, 14 December 2009, available on the Internet at www.cisg-online.ch; Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Russia, Award No. 5/1997, English translation availa- ble on the Internet at www.cisg.law.pace.edu;

Bundesgericht, Switzerland, 18 May 2009, English translation available on the Internet at www.cisg.law.pace.edu (applying the Convention to a purchase of a packaging machine consisting of ten individual devices as well as several transportation and interconnection systems, which also imposed upon the seller the obligation to install the packaging machine and prepare its operation at the buyer's works).

[6] Kreisgericht Bern-Laupen, Switzerland, 29 January 1999, available on the Internet at www.cisg-online.ch.

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Vienna Convention and termination of the contract of sale. Limitation and prescription periods of the action.

As already noted, the Vienna Convention does not deal with the limitation of actionswhich, according to the most authoritative doctrine[1] and case law,[2] is governed by the domestic rules. The limitation period, therefore, pursuant to Article 7(2) of the same Convention, is governed by the rules of the applicable law and, in the case of Italian law, by Article 1495 of the Civil Code et seq.

Time limits under Art. 39 and 49 of the Convention

In contrast, the Convention expressly regulates the time limits for the forfeiture of the purchaser's right to warranty. Art. 39 reads as follows:

The purchaser forfeits the right to rely on a lack of conformity if he does not report it to the seller, specifying the nature of the lack of conformity, within a period of one year. reasonable termfrom the time it found or should have found it.
In all cases, the purchaser loses the right to assert a conformity defect if he does not report it at the latest within a period of two yearsfrom the date on which the goods were actually delivered to it, unless such expiry is incompatible with the duration of a contractual guarantee.

Art. 39 thus provides that the buyer's right to rely on a lack of conformity of the goods, including the right to terminate the contract, ceases to exist if he does not report it to the seller within a reasonable time after he has discovered it or ought to have discovered it and, in any case at the latest within two years from the date on which the goods were actually delivered to it.

Contrary to civil law rules, in the event that the purchaser wishes to request termination of the contractual relationship, the Convention provides for a further limitation period, in addition to that described above for reporting the defect, which requires it to notify the seller of its intention to declare the contract terminated. Art 49 of the Convention provides as follows:

The purchaser may declare the contract terminated [avoided]:
1. if the seller's non-performance of any of its obligations under the contract or this Convention constitutes a fundamental breach of the contract; [...].
However, when the seller has delivered the goods, the buyer's right to declare the contract terminated expires if it has not done so:
1. in the event of late delivery, within a reasonable time from the time it became aware that delivery had taken place;
2. in the event of non-compliance other than late delivery, within a reasonable deadline.

This article contemplates the most radical of remedies for non-performance by the seller: termination of the contract. Para. (2) of Art. 49 provides that where the buyer has delivered, the purchaser loses the right to terminate the contract if it does not exercise it within a "term reasonable" through its own unilateral declaration.

The buyer under the Vienna Convention must therefore:

within a reasonable time (and at the latest within two years after delivery) to notify the defect (Art. 39);
within a reasonable time after delivery, declare the contract terminated (Art. 49).

On the interpretation of 'reasonable time' in Art. 49 for the declaration of termination of a contract, the Courts have pronounced themselves taking into account the type of goods sold and product sector.

The period of five months from the moment the buyer informed the seller of the defects in the goods was deemed unreasonable;[3] a declaration of termination made eight weeks after the buyer became aware of the existence of the defects was also held to be out of time;[4] "The period of eight months after the buyer should have known of the defects was also held to be 'unreasonable'.[5] On the other hand, the period of one month to five weeks was considered reasonable and therefore timely to make the declaration referred to in Art. 49 (2) (b).[6]

Moreover, according to authoritative doctrine, the reasonable period of time referred to in Art. 49(2) may never exceed the period of time referred to in Art. 39(2), i.e. two years from the date on which the goods were actually delivered.

"The buyer loses the right to rely on the lack of conformity and consequently to terminate the contract. In such a case, the time limit provided for in Art. 39 prevails over that provided for in Art. 49(2)(B); the date of the complaint under Art. 39 and that of the declaration of termination under Art. 49 may not coincide, but the time limit for both starts at the same time, and has the same expiry date [note date of actual delivery].[7]"

This implies that within a maximum of two years after delivery, the buyer must either denounce the defects (ex art. 39) or declare the contract void (ex art. 49)if it intends to seek termination of the contractual relationship in court.

About the mode with which such a declaration must be made, Article 26 of the Convention provides:

"A declaration of termination is effective only if it is made by notice to the other party."

This implies that this declaration must contain expressly and unequivocally that the contract has been terminated and therefore terminated.[8]

[1] Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods, UNCITRALS, 2016 UNITED NATIONS, 2016 Edition, p. 25; Schlechtriem, Internationales UN-Kaufrecht, Tübingen 2007, 124, n. 162; Honsel, Das einheitliche UN-Kaufrecht, available at. http://20iahre.cisg-library.org."

[2] Bundesgerichtshof, Germany, 23 October 2013, Internationales Handelsrecht 2014, 25 = CISG-online No. 2474; Bundesgericht, Switzerland, 18 May 2009, English translation available on the Internet at www.cisg.law.pace.edu; Appellationsgericht Basel-Stadt, Switzerland, 26 September 2008, English translation available on the Internet at www.cisg.law.pace.edu; Supreme Court, Slovakia, 30 April 2008, English translation available on the Internet at www.cisg.law.pace.edu; Oberlandesgericht Köln, Germany, 13 February, 2006, also in Internationales Handeslrecht 2006, 145 ff.; Cour d'appel de Versailles, France, 13 October 2005, English translation available on the Internet at www.cisg.law.pace.edu, Tribunale di Padova, sez. Este, 20 February 2004, available at http://www.uncitral.org/docs/clout/ITA/ITA_100106_FT_clean.pdf.

[3] Bundesgerichtshof, Germany, 15 February 1995; see also Oberlandesgericht München, Germany, 2 March 1994] (4 months).

[4] Oberlandesgericht Koblenz, Germany, 31 January 1997.

[5] Cour d'appel Paris, France, 14 June 2001; see also Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Russia, 22 October 1998. (which considered a complaint made after five or six months to be untimely); Hof 's-Hertogenbosch, Denmark, 11 October 2005.

[6] [Tribunal cantonal du canton de Valais, Switzerland, 21 February 2005] (one month); CLOUT case No. 165 [Oberlandesgericht Oldenburg, Germany, 1 February 1995] (five weeks); Bundesgericht, Switzerland, 18 May 2009, Internationales Handelsrecht 2010, 27 (one to two months).

[7] Bianca and Bonell, Commentary on the Vienna Convention on the International Sale of Goods, New Civil Laws Annotated, CEDAM, Padua, 1989.

[8] Kantonsgericht des Kantons Zug, Switzerland, 30 August 2007; UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods, UNCITRALS, 2016 UNITED NATIONS, 2016 Edition, p. 233.

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Notice of Defect and Statute of Limitations in the International Sale of Immovable Property. What does the Vienna Convention provide for?

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 gaps in the agreement 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.

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convenzione di Vienna

To understand whether, when and to what extent the general terms and conditions apply to the sales relationship is the purpose of this article, in which an attempt will be made to outline the differences between the civil law and the Vienna Convention rules.

1. Proposal and acceptance: Art. 1229 of the Civil Code and Art. 19 CISG.

2. When the GTC apply to the contract: Civil Code and CISG compared.

3. Implied acceptance by conclusive facts.

4. Language of the CGC.

5. Battle of the forms: knock-out and last shot rules.

The purpose of this article is to give the reader an overview of how the Vienna Convention has regulated the institutions of the proposal of an offer, its acceptance, pre-contractual liability in negotiations and the main differences from Italian law.

1. Art. 14: Definition of proposal.

2. Art. 15: Withdrawal of the proposal.

3. Art. 16: Revocation of the proposal

4. Art. 17: irrevocable proposal.

5. Art. 18: acceptance of the proposal.

6. Revocation and pre-contractual liability: civil code.

7. Revocation and pre-contractual liability: Vienna Convention.

1. Vienna Convention

2. Civil Code

The regulation of general terms and conditions in e-commerce involves not a few insignificant complexities.

1) When are they valid?

1.1. Knowability and knowledge.

1.2. Written proof and unfair terms.

2) 1341 of the Civil Code and electronic commerce.

3) 1341 Civil Code and international trade

3.1. Waiver of Jurisdiction.

3.2. General Terms and Conditions and the Vienna Convention.

(a) Warranty for defects (Arts. 1490-1496 Civil Code)

(b) Guarantees for lack of quality pursuant to Article 1497 of the Civil Code.

(c) Aliud pro alio

(d) Damages

e) Application of the Vienna Convention and the Consumer Code

1. Difference between contract of sale and applato.

2. What if the Vienna Convention applies?

(a) Complaint of Defect

(b) Prescription

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The original article was written in Italian and translated with Deepl and may therefore have some inaccuracies.

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