Summary
Pursuant to Art. 5 of Regulation (EC) No 44/2001 of December 2000, Italian courts have jurisdiction to entertain the summary proceedings (decreto ingiuntivo) brought under Art. 633 of the Italian Civil Code by the Italian purchaser against two Spanish companies for the payment of double the sum that he paid to confirm the preliminary agreement for the sale of a yacht, sailing under the English flag, to be delivered in Spain, as they are the «courts for the place of the performance of the obligation in question». In fact, given that according to the court of first instance such contract must be regarded as a preliminary agreement for the sale of the yacht rather than a final sale contract and that a yacht is a movable property registered in a public register, the obligations characterising the contract under the lex fori, i.e. Italian law, are the conclusion of a written contract signed by the parties, verified by a notary and registered in the public register, and the immediate payment of the residual price by the promissory buyer, thus triggering both the jurisdiction of the Italian courts as forum destinatae solutionis and the application of Italian law.
The grounds of appeal concerning, amongst others, the lack of jurisdiction of Italian courts and the wrong characterization of the contract by the court of first instance are inadmissible in the proceedings before the Supreme Court of Cassation, pursuant to Art. 342 of the Code of Civil Procedure, as amended by Art. 54 par. 1(a) of Legislative Decree No 83/2012 (applicable to the case at issue ratione temporis), for the applicants, while raising an objection of procedural nature, failed to contest the characterisation of the contract between the parties and the following determination of its characteristic obligations by making no reference in their application to the reasoning of the court of first instance on such issue but simply suggesting a different outcome on the basis of an alternative characterisation.