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| Abstract | ||||||||||||||||||
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| A Portuguese seller and a Dutch buyer, defendant, concluded a contract for the sale of concentrated apple juice. The Portuguese seller then assigned his claim by contract to another company (the plaintiff), which started legal action as the defendant failed to pay the purchase price. The defendant intended to set off a claim in action. The latter claims derived from contracts of sale where the Portugese had been the buyer and two German companies had been the sellers. Teh German sellers had assigned their claims by contract to the defendant.
The Court of first instance decided that the defendant had to pay the full purchase price. With respect to the attempted set-off the Court declined jurisdiction. In confirming the first instance decision, the Court of Appeal stated that the defendant had to pay the full pruchase price and could not declare set-off due to the lack of jurisdicion. In order to determine whether it had jurisdicion over the declared set-off, the Court applied Art. 5(1) of the EC Convention on Jurisdicion and Enforcement of Judgements in Civil and Commercial Matters (Brussels, 1968). According to this article a person domiciled in a Contracting State (in the case at hand: the plaintiff) may be sued in the court of the place of performance of the obligation in question. In the case at hand the set-off claims originated from the contracts between two German companies (in those contracts: the sellers) and the Portuguese company (in those contracts: the buyer). The Court applied Art. 57 CISG to determine the place of payment. Originally, the Court had jurisdicion, as the sellers place of business was Germany. But after the German creditors had assigned the claims to the Dutch defendant, the German Court lost jurisdicion. Thus the international jurisdicion was vested in the Dutch Court. |