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| Abstract | ||||||||||||||||||
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| A French buyer and a German Italian seller concluded a contract for the sale of clothing. The parties agreed that the goods had to be delivered "EXW" (ICC-INCOTERM "Ex Works") at the seller's factory. When the goods were delivered, the buyer brought an action against the seller before a French court alleging that the goods were defective. The seller objected to the jurisdiction of the French courts. The Court of first instance (Tribunal de Commerce de Montereau, 04-11-1997) declined jurisdiction in favor of the German courts. The buyer appealed on the issue of jurisdiction.
The Court of Appeals applied Art. 5(1) of the EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels, 1968), according to which a person domiciled in a Contracting State (in the case at hand: the seller) may be sued in the Court for the place of performance of the obligation in question. The Court held that the obligation in question was the seller's obligation to deliver conforming goods, and applied CISG as the law governing the contract (Art. 1(1)(a) CISG) to determine such place. Referring to Arts. 35(1) and 35(2)(a) CISG, the Court held that the obligation of conformity of the goods to their ordinary use is not independent from the obligation of delivery. Therefore both obligations must be performed at the same place. In the case at hand, the "EXW" INCOTERM clause indicated that the parties had agreed on the seller's place of business as the place of delivery. Moreover, the seller had actually handed the goods over to a carrier on its own premises. Therefore, under Art. 31(a) CISG the obligation to deliver conforming goods was to be performed at the seller's place of business in Germany. On this ground the Court concluded that the jurisdiction to hear the case was vested in the German courts. |