A written statement filed in court or an appeal that explains a party`s legal and factual arguments. The right as set out in previous court decisions. Synonymous with precedent. Similar to the common law, which stems from tradition and judicial decisions. Only if the contractual characterization is applied in the manner set out above is the result consistent with the principle that article 5 cannot be applied to confer jurisdiction on a forum that has no real connection with the substance of the action. For example, if a manufacturer in Dublin sells a product to a reseller in London, who then resells it to someone in Marseille, and it turns out that the product is not as strong as the French subcontractor might have expected based on his contract with the London reseller, I think it would be strange if the manufacturer in Dublin who perhaps did not intend to do business in France could be prosecuted in Marseille. It could, of course, be different if the manufacturer had known that the merchant intended to resell the goods to a final consumer in France, and it would certainly be different if the manufacturer was willing to deliver the goods directly to the sub-buyer. In the latter case, the place of performance of the obligation in question would probably be Marseille. The main argument justifying the characterization of the subcontractor`s claim against the manufacturer for non-delivery of goods of appropriate quality is simply that there is no contract between the two parties. The “contractual” link between the parties consists of two or more separate contracts, which may, of course, contain very different clauses, including conflicting jurisdictional clauses, and may be the subject of a different lex causae. This appears to constitute a major obstacle to a contractual classification of the subcontractor`s direct claim, as it seems difficult to determine exactly what contractual obligations the producer owed to the sub-buyer.
The national court may therefore have considerable difficulty in determining the place of performance of the obligation. The question that will inevitably arise in many such cases is: “What obligation?” Is it the manufacturer`s obligation to his buyer or the obligation of that buyer – or a subsequent buyer – to the sub-buyer? In many internal situations, this may not matter. but in a case arising from the Convention, there will probably be different responses. A written court order ordering a person to do or refrain from doing a particular act. The distinction between contractual and tortious liability is old and undoubtedly exists in all developed legal systems. Contractual liability can be defined as civil liability for non-performance of an obligation owed by one person to another under an agreement between the parties. Tort liability can be defined as civil liability for failure to perform an obligation imposed by law independently of any agreement between the parties, such as the duty to exercise due diligence while operating a motor vehicle. Handte Germany criticises the French courts for having classified TMCS` claim in the lex fori, so that it is treated as contractual. Instead, the application should be subject to an independent classification based on the system and objectives of the Convention.
The main obstacle to classifying the claim as in conformity with the contract is the absence of a contractual link between the manufacturer and the subcontractor. Moreover, the French classification of the claim as contractual is not adopted by all the other legal systems of the Contracting States, in particular English law. A court decision in a previous case with facts and points of law similar to a dispute currently pending in court. Judges generally “follow precedents,” that is, they use principles established in previous cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedents if a party can prove that the previous case was ill-decided or that it differs significantly from the current case. It should be noted that the subject matter in French law is not without controversy and that the case law is not entirely consistent. In particular, the judgment of the Court of Cassation of 12 July 1991, Besse (Reports Dalloz Sirey 1991, p. 1). 549) seems to mark a breach of contractual liability in favour of a classification in tort. In this case, the Court of Cassation ruled that an action against a subcontractor for poorly executed construction work was a tort within the meaning of the basic wording of Article 1165 of the Civil Code, “agreements have effect only between the contracting parties”.