In a recent Court dispute handled by our Firm concerning a logistics contract, the judicial Authority seemed inclined to dismiss claims for damages caused by inventory shortages.
The interpretation was expressed in a verbal discussion and was not crystallized in a judgement, since in the case in question the parties decided to solve the wider dispute by reaching a settlement.
However, the occasion offers the opportunity for a consideration: when can we speak of probatio diabolica on the subject of inventory shortages?
The case dealt with a typical dispute initiated by a leading company in the industrial cosmetics sector against the company responsible for storing the goods entering its warehouse, holding them in custody and preparing them for shipment. Once the contractual relationship ended, the company noticed significant shortages from its physical inventory. Over two hundred thousand euros worth of product had literally “vanished into thin air”. The claim was filed through a writ of summons with attached a series of documents certifying the loss of the goods. Besides the documentary evidence, the admission of witness testimony and a report by a Court appointed expert were requested. For its part, the contractor denied any responsibility for the correct tracking of entering and leaving goods. The debate that took place in Court concerned the scope of the burden of proof in the specific field of the subject of the dispute. The Judge observed that inventory shortages cannot be proven by documents or witnesses, and can certainly not be proven by the report of a Court appointed expert for merely exploratory purposes. In fact, the proof of a shortage is a “probatio diabolica”. The probatio diabolica is the extremely difficult, if not impossible, proof that strongly limits the chances of having a claim granted at Court.
In accordance with the principle set out in Article 2697 of the Italian civil code, whoever wants to assert a right in Court, must prove the facts on which the right is based. For this reason, the fulfillment of the burden of proof is a decisive circumstance in solving a dispute. It follows that, in disputes regarding inventory shortages, the arduous evidence gathering to be carried out before a Judge should prompt the parties to self-check themselves, right from the first year of the logistics contract, by performing agreed upon systematic inventory checks to be carried out in joint consultation and recorded in a document signed by both parties for acceptance. In fact, in the world of logistics the provision of specific contractual agreements has become more and more often the most effective tool for company protection.
