Goods in Transit: Italian Imports, Exports, and the Lex Situs at the Moment of Transfer
|:---| | Seller's obligation to deliver | Contract law (Rome I) | Choice of law in the contract | | Buyer's obligation to pay | Contract law (Rome I) | Choice of law in the contract | | Seller's warranty against defects | Contract law (Rome I) | Choice of law in the contract | | Whether title has passed | Italian lex situs | Compliance with Italian formalities | | Retention of title enforceability | Italian lex situs | Registration with data certa before delivery | | Good-faith acquisition by sub-buyer | Italian lex situs | Art. 1153 — Italian good-faith purchaser prevails | | Priority between competing claims | Italian lex situs or assignor's domicile | Notification requirements under Art. 1264 |
Goods in Transit: The Practical Protocol
For goods moving between the UK and Italy, the following protocol minimises risk:
Before shipment: Ensure the sales contract contains a clear governing law clause and a retention of title clause.
Before delivery in Italy: Register the retention of title clause with a data certa in Italy. This is the step most frequently omitted and the most consequential.
During transit: The transit exception (Rule 142) may validate the retention of title under the law of the contract, but this protection is provisional and ceases once the goods arrive in Italy.
After arrival in Italy: The Italian lex situs exclusively governs the proprietary effects. If the retention clause has not been given a data certa, it is unenforceable against the buyer's Italian creditors.
In the event of buyer insolvency: The UK seller must demonstrate compliance with Italian formalities. Reliance on English-law rights alone will not suffice.
The Chattel Mortgage Complication
Chattel mortgages and conditional sales raise an acute form of the nemo dat vs. good-faith acquisition clash. Under common law, the policy is expressed in the maxim "Nemo dat quod non habet" — no one gives what they do not have. Under Italian civil law (and French law: "En fait de meubles la possession vaut titre"), the policy favours the good-faith acquirer who takes possession.
These policy differences affect the way in which conflict of laws problems are resolved. If a chattel mortgage over goods in Italy is not registered in the Italian registry, a good-faith third party who acquires the goods from the mortgagor obtains clean title, free from the mortgage interest. The common law mortgagee's rights are defeated.
Professional Legal Considerations
UK sellers exporting goods to Italy should not assume that an English-law retention of title clause provides adequate protection. The proprietary effects of the transfer are governed by the Italian lex situs, and Italian law imposes specific formalities (registration with data certa) that have no equivalent in English commercial practice.
Practitioners should structure cross-border sale contracts to anticipate the lex situs issue. This includes:
Ask the Corporate Desk about Goods in Transit
Authority Notes
The transfer framework is stated in Rules 141–142 of Dicey, Morris & Collins on the Conflict of Laws (15th Edition), Chapter 25. The Italian PIL confirmation is found in Article 51 of Law 218/1995 (lex rei sitae), which governs proprietaryeffects when goods arrive in Italy. The convergence is important: both the English (Rule 141) and Italian (Art. 51) systems designate the lex situs as the exclusive authority for proprietary questions, including retention of title and good-faith acquisition. Italian domestic provisions are in Articles 1376, 1378, 1523–1526 (retention of title), and 1153 (good-faith acquisition) of the Codice Civile.
[!TIP] Authoritative Links: For more on the situs determination that triggers these rules, see our note on Movable or Immovable? The Hidden Classification or Assignment of Italian Debts and Receivables.