JURE SUMMARY

JURE SUMMARY

An Italian company granted to a person acting for a French company, an exclusive concession agreement for ice cream distributing machines as well as its trademark for the whole French territory. The contract was governed by Italian law and provided for a guarantee of a year from the putting into service of the machines in France. According to her obligations, the concessionaire bought from the Italian company a certain amount of machines and resold a part of them to another French company. The latter, invoking manufacturing faults, seised a French court and obtained the appointment of an expert. The French concessionaire has also brought an action for guarantee against the Italian company before the Tribunal de commerce of Issoudun (FR). The latter challenged the jurisdiction of the French courts. Since its claim was dismissed in first instance and on appeal, it lodged an appeal in cassation. The cour de cassation (FR) affirms the competence of the French courts, pursuant to Article 5(1) Brussels Convention. It finds that in order to determine the place of performance in the sense of this provision, the obligation corresponding to the contractual right on which the defendant’s action is based shall be taken into account. In this case, it is a claim for guarantee filed by the French purchaser of machines with a supplier established in Italy, which is founded on a clause in the contract. Accordingly, the judges deciding on the substance of the case, before whom it was not alleged that Italian law imposed a different solution, had enough legal basis to dismiss the plea of incompetence of the French courts and to conclude that the place of performance of the obligation for guarantee was the one where the machines had been installed.