Tutorial 6 - Contractual and non-contractual obgliations in private international law
Task 12 - Practice
Case 1 ‘1500 bagels’
1. Which court(s) has/have international competence?
We will probably use Brussels I recast. Germany and France are part of this regulation and
we must determine the scopes in order to find out whether we can apply the regulation:
- Material scope: art. 1 (1) and does not fall into exception of 1 (2)
- Formal scope: arts. 4-6 in conjunction with 63
- Temporal scope: arts. 66 and 81
Then the application. There is no exclusive jurisdiction according to art. 24, there is no
application of sections 3-5 and there is no prorogation.
Therefore, we apply art. 7 (1) b in conjunction with art. 4. Art. 7 (1) b says that in the case of
the sale of goods, the Member State where the goods were delivered or should have been
delivered has got jurisdiction. Because the bagels were delivered in France, the French court
has jurisdiction. We use it in conjunction with art. 4 which in conjunction with art. 63 we
establish German jurisdiction. This means that the plaintiff can choose.
With art. 7 you use case law Car Trim or Tessili Dunlop (see scheme at bottom of notes).
There is a performed obligation, but the place of factual performance is unknown. Therefore,
we go to not yet performed obligation. There is no agreement in the contract itself, and it is a
about a sales of goods after februari 2010, which means that we apply car trim. When
applying car trim, we see that the place of supposed physical transfer is used, so in this case
it is Paris.
If we must apply Tessili Dunlop, then we determine the applicable law according to the
conflict rules of the forum where the proceedings are seised at that moment.
2. Which law is applicable?
We will probably use Rome I regulation. Germany and France are part of this regulation and
we must determine the scopes in order to find out whether we can apply the regulation:
- Material scope: art. 1 (1) and does not fall into exception of 1 (2)
- Formal scope: art. 2 (universal scope)
- Temporal scope: arts. 28 and 29
Then the application. First, we check art. 3 (prorogation). There is no choice of law so art. 3
is not applicable. Then we check articles 5-8 to see if they apply which they do not. Then, we
apply art. 4 (1) a, in conjunction with art. 19 which determines Germany. So german
substantive law will apply (art. 20).
3. Which law is applicable? Or: Does this variation have consequences to the question for
the applicable law?
Now Fabrice is a consumer, so art. 6 (1) b is applicable. This means that the law of the
consumer’s habitual residence is applicable, which is French law. Specific supermandatory
rule art. 9 (3) also place of performance might matter. Also take these into account.
Task 12 - Practice
Case 1 ‘1500 bagels’
1. Which court(s) has/have international competence?
We will probably use Brussels I recast. Germany and France are part of this regulation and
we must determine the scopes in order to find out whether we can apply the regulation:
- Material scope: art. 1 (1) and does not fall into exception of 1 (2)
- Formal scope: arts. 4-6 in conjunction with 63
- Temporal scope: arts. 66 and 81
Then the application. There is no exclusive jurisdiction according to art. 24, there is no
application of sections 3-5 and there is no prorogation.
Therefore, we apply art. 7 (1) b in conjunction with art. 4. Art. 7 (1) b says that in the case of
the sale of goods, the Member State where the goods were delivered or should have been
delivered has got jurisdiction. Because the bagels were delivered in France, the French court
has jurisdiction. We use it in conjunction with art. 4 which in conjunction with art. 63 we
establish German jurisdiction. This means that the plaintiff can choose.
With art. 7 you use case law Car Trim or Tessili Dunlop (see scheme at bottom of notes).
There is a performed obligation, but the place of factual performance is unknown. Therefore,
we go to not yet performed obligation. There is no agreement in the contract itself, and it is a
about a sales of goods after februari 2010, which means that we apply car trim. When
applying car trim, we see that the place of supposed physical transfer is used, so in this case
it is Paris.
If we must apply Tessili Dunlop, then we determine the applicable law according to the
conflict rules of the forum where the proceedings are seised at that moment.
2. Which law is applicable?
We will probably use Rome I regulation. Germany and France are part of this regulation and
we must determine the scopes in order to find out whether we can apply the regulation:
- Material scope: art. 1 (1) and does not fall into exception of 1 (2)
- Formal scope: art. 2 (universal scope)
- Temporal scope: arts. 28 and 29
Then the application. First, we check art. 3 (prorogation). There is no choice of law so art. 3
is not applicable. Then we check articles 5-8 to see if they apply which they do not. Then, we
apply art. 4 (1) a, in conjunction with art. 19 which determines Germany. So german
substantive law will apply (art. 20).
3. Which law is applicable? Or: Does this variation have consequences to the question for
the applicable law?
Now Fabrice is a consumer, so art. 6 (1) b is applicable. This means that the law of the
consumer’s habitual residence is applicable, which is French law. Specific supermandatory
rule art. 9 (3) also place of performance might matter. Also take these into account.
