Reference no: EM131675180

Question: Posh Pooch Inc., which designs couture pet carriers and accessories, convinced the Italian corporation Nieri Argenti to manufacture various fine leather and related goods for Posh Pooch. Posh Pooch picked up some of the goods in Italy, but at least seven shipments were sent to its store in New York. At the bottom of 12 invoice forms sent to Posh Pooch from Nieri Argenti was a seven-line paragraph written in tiny type in Italian, under the heading "Condizioni Generali Di Vendita." The last sentence of this paragraph stated, "Per controversie e competente il Foro di Firenze," which translates as, "The courts of Florence have jurisdiction over disputes." Other than this paragraph, most of the invoice was either written in English or translated into English. There is no evidence that the parties otherwise discussed the forum for resolution of disputes.

Posh Pooch brought an action in New York against Nieri Argenti. At oral argument, the parties seemed to presume the existence of a contract between them for the sale of goods, but apparently they had not signed any written purchase contract. The parties did enter into two written confi dentiality and nondisclosure agreements in 2003 that were written in English. Both agreements provided that New York law and international law would govern the construction of those agreements. Nieri Argenti contends that the court should dismiss the action on the basis of the forum selection clause contained on the invoices sent to Posh Pooch. The court found that additional terms to a contract for the sale of goods "are to be construed as proposals for addition to the contract" and do not become part of the contract between merchants if they "materially alter it," unless both parties explicitly agree to the alteration. Do you believe the term in the contract requiring the dispute to be resolved in Italy should be enforced? Why or why not?