IV.

Is it, however, necessary to “divide” or “split” still further the place of performance of the obligation and to look for the place in which a debt resulting from the termination of a contract of sale by reason of the wrongful conduct of the seller is to be paid and the place where the article sold must be returned, if such is the subject of the action before the court dealing with the substance of the case. This is the real question before the Oberlandesgericht Frankfurt. As the contractual obligation has been performed and as the dispute concerns the defective nature of that performance, the court asks whether the phrase “the obligation is to be performed” may refer to the substitute obligation into which the breach of the main obligation may be resolved. According to one argument, although it is correct that a failure to perform or, on the other hand, the proper performance, of the obligation which is, from the point of view of the seller, the essential feature of the contract of sale, will be established in the place of delivery, acceptance of delivery and approval of the goods, it may be that hidden defects in the article sold only appear later in a different place from the original place of delivery. It is in the former that the terms, conditions for performance (arrangements for examining the goods) or consequences of the breach (termination on grounds of breach, the raising of the issue of the seller's liability, etc.) must be “brought before the courts”. Therefore, any obligation on the seller which is brought before the courts for this reason by using one of the many means of redress available under national law (termination of the contract, damages, duty to provide a guarantee, etc.) may and must be performed in a place different from that in which the original, essential obligation (delivery in the case of a sale) was performed. This may be either the place where the goods are to be found, or the place where the sum owed by the buyer is to be recovered, according to whether it must be collected (as is the case in France, Belgium and the Federal Republic of Germany) or is payable at the address of the payee (as is the case in Italy and the Netherlands). Thus, the problem which arises in the present case is to discover whether the obligation referred to in Article 5 (1) is the original obligation or its substitute, represented according to customs or national laws, by an action for specific performance, in whole or in part, of the contract or for its termination or by an action for the payment of damages for failure to perform or insufficient performance. If taken to its logical conclusion, this argument amounts to maintaining that if a contract contains several obligations to be performed by the defendant the plaintiff could choose the competent court from among all those which are, to a greater or lesser degree, concerned with any one of the obligations under the contract, even if that obligation were not itself in dispute. This explains why Article 5 (1) refers to the place where the obligation has been or is to he performed. I do not consider that it is possible to go so far. The Italian version of Article 5 (1) assumes that the obligation in question must at least be in dispute, since it refers to it as “dedotta in giudizio”. More particularly, such an argument would not be compatible with the intentions of the authors of the Convention. Of course, the rules established by that text are intended essentially to resolve conflicts of jurisdiction; they are not principally rules of substantive law. However, I consider one of the assumptions of the system set up by the Convention to be that although distinctions may be made according to the type of contract and the parties to it, taken as a whole a contract constitutes a legal and economic entity and all questions connected with the performance of the essential obligation of the contract must fall within the jurisdiction of the court for the place of performance of that obligation. Any disputes which have arisen or which may arise in connexion with the “particular legal relationship” (Article 17) constituted by the obligation to deliver must be brought before the court for the place where delivery must take place. Any contract draws its dominant feature from one of the obligations which result from it, even if such obligations may differ according to the circumstances. The expectations of the parties are turned towards the performance of that particular obligation and it is in the place of performance that the failure to perform will normally be found and the consequences of such failure drawn. The contrary argument would amount to perfectionism and would bring us back to the criterion of the place in which the goods are to be found (lex rei sitae) or to that of the forum conveniens. An approach which would without further qualification adopt the court of the place which has the closest links with the performance of the obligation, or which appears to be the most appropriate for such performance — “the court with the closest connexion” (by analogy with Article 4 of the draft of the Convention on the law applying to contractual and non-contractual obligations) — would be too vague and general and would make it impossible to advance the basic values in the matter of contract, namely legal certainty and the possibility of foreseeing the law which will be applied. It has been stated by authoritative commentators (Droz, Competence Judiciaire et Effets des Jugements dans le Marché Commun, 1972, p. 128), that “the Convention rejects the theory of the forum conveniens; serious difficulties of a practical nature may arise in determining the connexion between the case and the designated court”. The same author states further (pp. 45-46) that “These rules of jurisdiction (in Articles 5 and 6) form a whole and are self subsistent … It must be accepted in principle that the silence of the Treaty as to a ground of jurisdiction means that such a ground must be excluded: this will apply for example, not only to the forum of the place where the contract was made, but also to the forum ascertained by reference to connexion with the contract, a principle which the Treaty has not accepted as a ground for direct jurisdiction’. As Mr Bourel observes (Les Conflits de Lois en Matière d'Obligations Extracontractuelles, 1961, p. 145), ‘if the obligations which result from the contract are determined by the will of the parties, those which result from a breach of the contract are created by law and are thus covered by the territorial rule, in the same way as obligations arising in matters of tort’. The result of this is that, by reason of the disparity in the territorial rules, the obligations which result from a breach of contract may vary considerably according to whether the rules are optional, subject to the law chosen independently by the parties, or constitute mandatory provisions, covered by the law governing performance of the contract. Such a result would jeopardize the aim of grouping and ‘concentrating’ the disputes in the court hearing the original application which was in the minds of the authors of the Convention when they drafted Article 6 (third-party proceedings, counterclaim). In fact, unlike the authors of the Benelux Treaty on jurisdiction of 1961, which has not yet come into force, the authors of the Convention adopted the criterion of the place of performance of the obligation rather than the place where it came into being. Article 4 of the Treaty provides that: ‘Any dispute which arises in matters concerning personal rights and obligations and rights and obligations relating to recoverable property and in civil or commercial matters, may be brought by the plaintiff before the court of the place in which the obligation came into being, or in which it has been or is to be performed.’ Article 1 (2) of the Protocol states: ‘The Grand duchy of Luxembourg shall not be obliged to recognize judgments given in matters of contract by a Belgian or a Netherlands court or to declare them enforceable where the jurisdiction of such court was based on the place where the obligation came into being or where it was performed, if, when the action was brought, the defendant was domiciled in Luxembourg or, if he was not domiciled in one of the three countries, had his residence there’. If the authors of the Convention have not simply referred to the ‘place of performance of the contract’, this is because the Convention applies both to commercial and civil matters. In employing the phrase ‘the place where the obligation is to be performed’, they are referring to the original and principal obligation which forms the essential feature of the contract. It would only be useful to resort — and then only on a subsidiary basis — to the criterion that jurisdiction shall vest in the court of the place which has the closest links with the performance of the obligation if the act which forms the essence of the transaction cannot be defined. This is, however, not the case as regards the sale of goods.