Giurisprudenza

  • Dettagli del caso
    • ID nazionale: no. 2356/2001
    • Stato membro: Italia
    • Nome comune:Soc. Mac 2 v. Soc. Fantoni
    • Tipo di decisione: Altro
    • Data della decisione: 23/02/2001
    • Organo giurisdizionale: Corte di cassazione
    • Oggetto:
    • Attore:
    • Convenuto:
    • Parole chiave:
  • Articoli della direttiva
    Consumer Sales and Guarantees Directive, Article 1, 1. Consumer Sales and Guarantees Directive, Article 3, 5.
  • Nota introduttiva
    A contract may be rescinded for the non-performance of the other contractual party consisting in the delivery "aliud pro alio". In the cases where the parties have not expressly agreed the use of a specific purpose of the sold good, the aliud pro alio is implied whether the sold goods do not possess the minimal qualities able for whatever use, in the range of normal uses. That is implied also where the sold good is corresponding to the whole identity expected for that good, but some unusual substances present into it render the sold good not useful at all. In such a case the burden of proof is on the purchaser.
  • Fatti
    The company Mac 2 has brought an action before the Corte di cassazione asking the judges to determine whether the sale of wood powder added of boron and nitrogen without informing the purchaser implies “aliud pro alio”.
    The Corte di appello di Trieste confirmed the decision of the Tribunale di Tolmezzo, declaring that the purchase of such a wood powder from the Mac 2 was to be considered not aliud pro alio. Consequently, not having the remedy against faults of the sold good because of the running of terms, the company Mac 2 has been held to pay the purchased wood powder. In fact, the aliud pro alio was considered not proven because the company Mac 2 should be able to discover the composition of that wood powder in 9 months of periodical supply. The addition of boron and nitrogen could not in any case be considered as unusual in such a product, whilst the company Mac 2 had assumed that the presence of boron created several sufferings to the plants of its customer to whom the company Mac 2 retailed the wood powder for gardening.
  • Questione giuridica
  • Decisione

    A contract may be rescinded for the non-performance of the other contractual party consisting in the delivery "aliud pro alio". In the cases where the parties have not expressly agreed the use of a specific purpose of the sold good, the aliud pro alio is implied whether the sold goods do not possess the minimal qualities able for whatever use, in the range of normal uses. That is implied also where the sold good is corresponding to the whole identity expected for that good, but some unusual substances present into it render the sold good not useful at all.
    However only the purchaser must prove the “aliud pro alio” in that situation where it is not evident how these substances had operated for depriving the sold good of its minimal qualities for any use (Cassazione 10/12/1991 no. 13268). Moreover, such a proof is a matter of fact, not determinable before the Supreme Court, but before the Inferior Courts.

    Testo integrale: Testo integrale

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