A French company placed an order with another French company for the purchase of goods made of nappy. Faced with some difficulties on the part of the seller to perform the order, the French buyer turned directly to the German manufacturer which regularly supplied the French seller. Subsequently, the French buyer was forced to withdraw the goods from the market, as they did not meet the safety requirements provided by French law. Therefore, it commenced an action before the French jurisdiction against both the French and the German companies for recovering the purchase price plus damages. The Court of first instance declared its lack of jurisdiction to hear the case.
The appellate Court reversed the decision of the lower court, holding that jurisdiction was vested in the French courts. In order to reach this conclusion the Court, after confirming (as held by the first instance Court) that a contract governed by CISG (Art. 1(1)(a)CISG) had been concluded between the French seller and the German manufacturer, applied Art. 5 (1) of the EC Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (Brussels, 1968), according to which a person domiciled in a Contracting State may be sued in the courts for the place of performance of the obligation in question (in the case at hand: delivery of goods). As to place of delivery, the Court found that the German manufacturer had impliedly agreed to a “franco- France” delivery and, therefore, that the French courts had jurisdiction over the case. Furthermore, the Court denied the validity of the forum selection clause invoked by the manifacturer, as it had not been accepted by the buyer.
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