It is not always easy to distinguish between the sale of a faulty product and the sale of aliud pro alio. Recently the Italian Supreme Court has clarified some aspects of the issue, including the legal actions that shall be taken in one case or another.
As it is known, the provisions concerning defects of the sold product are set by articles from 1490 to 1497 of the Italian Civil Code. Further provisions are contained in the Consumers Code (articles 128 and ff. Consumers Code) yet they are applicable only to consumers contracts.
There are several objections that the buyer might raise against the seller concerning the fitness of the goods purchased.
The first objection: according to article 1490 c.c. the buyer is guaranteed in case of “defects that make the good unfit for its intended use or that lower its value considerably”. The second objection: it is described by article 1497 c.c., it regulates cases of faulty products due to lack of qualities. Such qualities may be those promised by the seller or the qualities which are absolutely necessary for the goods to be suitable for their intended use. Then there is a third objection that can be made when the delivered goods are completely different from what the parties agreed on. Such scenarios constitute the so-called sale of an aliud pro alio.
The Consumers Code unites all the three objections under one single provision (article 129 Consumers Code – Conformity of the delivered goods). Conversely, in B2B sales the aliud pro alio concept has not been codified by the legislator. Therefore, sellers' liabilities and buyers' remedies have been set by the courts and by authors. According both to precedents and doctrine, in case of an aliud pro alio sale, the buyer shall resort to the general remedies against breach of contract; which will allow the buyer to escape the strict terms provided by article 1495, paragraphs 1 and 3 c.c. In fact, said provisions respectively provide an 8 days term to denounce the defects (limitation period) and a one year term to bring legal actions (statute of limitation).
In case of an aliud pro alio sale instead, the only applicable term is the ordinary statute of limitations of ten years set forth by article 2946 c.c. and applicable to all cases of termination of the contract for breach of the same (1453 c.c.).
How to distinguish one scenario from the others?
According to the Court of Cassation, the fault described under article 1490 c.c. concerns imperfections and defects related to the manufacturing process, formation, production and storage of the goods. On the other hand, the lack of promised qualities (under article 1497 c.c.) concerns the nature of the delivered goods or in any event all of their essential elements, which determine their belonging to one species or another of the same kind.
The sale of an aliud pro alio may be instead recognized when the delivered goods belong to a completely different kind of item/good, not only a different species. So much so that the differences between the goods purchased and those delivered are so macroscopic that the products are not suitable to fulfil their natural purpose nor the purpose that the parties deemed to be essential (Cass Civ. sez. II, 05.04.2016, no. 6596, Cass. Civ, Sez, I, 05.06.2016, no. 2313; more recently, Cass. Civ. Sez. II, 08.06.2022, no. 18528).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
