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| Mr. Otto Till Schillik |
Italian entrepreneurs are lucky with a comfortable routine prescription of ten years. In Germany, however
rights shall lapse already with the course of three years.
What does this big difference on trade between Germany and Italy and which law is applicable
?
A typical example: an Italian manufacturer has provided a firm in Germany that does not pay
open invoices. We make the usual reminders and time goes on. One day, after four years
Italian producer begins to recover the amount due to open. And maybe he has to do
little experience favorable claims have already been met. The cause is lost.
The crucial question is: is applicable requirement under Italian law (10 years) or German (3 years)?
As always, the answer depends on the circumstances of each case. Principle we
distinguish three cases:
1. Commercial relations without derogating from the law applicable
A contract of sale on the bilateral level is defined under the law regularly valid to the headquarters of the seller (hence the Italian law by the ordinary prescription of ten years ). The Convention on Contracts for International Sales (CISG) does not contain rules regarding the prescription. There is an international agreement regarding the requirement that instead was never signed by either Italy or Germany.
note that, in most cases no contract is valid "prescription Italian" in ten years. But we emphasize that it is only a principle, is not eligible for any scheme.
2. Purchase contract with an explicit exception to the law applicable
course the parties are free to agree on a law applicable to both the Italian law is Germany. It is also possible to apply the law of Mauritania (who would not highly recommended as neither the manufacturer nor the customer nor the judge have
knowledge of the law of a third country). The proposal or choice of law depends economic power of a party; an important buyer of German will always be accepted by German law. But we must know the consequences.
3. Exception to the applicable law and Conditions
In many cases, the purchase agreement refers to the conditions General in which the buyer is shown the application of German law. It remains to be seen whether the conditions are validly agreed general if not explicitly accepted by the seller Italian, but simply follows the delivery of goods.
By what law are the general conditions stipulated in international relations?
Under Italian law or German? Everything seems to be a "vicious circle", but it falls under the a very important and complex issue, discussed controversy over high-level international jurisprudence.
For example, the Italian Civil Code provides for the so-called double signature to the terms
unfair, according to German law is even possible the tacit acceptance of the terms general proposals by the developer.
It is true that the general conditions facilitate trade, but will not few dangers. We therefore recommend that both a careful study of conditions
dell’acquirente sia una stesura professionale delle proprie condizioni generali.
Come affrontare la “trappola della prescrizione”?
Per andare sul sicuro consigliamo:
1. Tenete presente che la prescrizione ordinaria in Germania ammonta solamente a tre
anni.
2. Non lasciate passare troppo tempo dopo l’emissione delle fatture. Non fate più di 2
solleciti.
3. Non abbiate paura del Vostro cliente moroso. Egli sa che deve pagare e magari
waiting for the cause and then pay.
promptly proceed through the courts is also advisable for other reasons
(probability of winning, the memory of witnesses, the solvency of the customer).
4. "On the high seas and in the courts are in the hands of God"? Not true, have a good
expert can remove the doubt that there are still governed by the law applicable in
trade relations with foreign countries. If there is a shadow of doubt about the applicable law
will need a check contract and any conditions
general by an expert.
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