MOTOR-VEHICLE PARTS ; IN THE COURSE OF ITS BUSINESS IT HAD DEALINGS WITH PAT GMBH , WHOSE REGISTERED OFFICE WAS IN MECKENHEIM , NEAR BONN , AND ONE OF WHOSE SHAREHOLDERS WAS THE DEFENDANT IN THE MAIN PROCEEDINGS , PIERRE MALHE , WHO RESIDES IN SALEUX ( FRANCE ) AND IS THE OWNER OF SOCIETE DE RECUPERATION DE PIECES AUTOMOBILES . ON 5 APRIL 1978 AS-AUTOTEILE OBTAINED A DEFAULT JUDGMENT IN THE LANDGERICHT ( REGIONAL COURT ) BONN AGAINST PAT IN THE AMOUNT OF DM 1 001 476.95 , PLUS INTEREST , FOR THE SUPPLY OF DEFECTIVE GOODS .
3 WHEN AS-AUTOTEILE TRIED TO ENFORCE THAT JUDGMENT IT DISCOVERED THAT PAT WAS INSOLVENT . AS-AUTOTEILE CONSIDERS THAT THE INSOLVENCY IS DUE TO THE FACT THAT PAT ' S ASSETS WERE UNLAWFULLY TRANSFERRED TO MR MALHE , IN THE FORM OF FICTITIOUS PROFITS . AS-AUTOTEILE THEREFORE OBTAINED FROM THE AMTSGERICHT ( LOCAL COURT ) RHEINBACH , ON 6 MARCH 1980 , AN ORDER FOR THE ATTACHMENT AND TRANSFER TO IT OF THE CLAIM FOR UNJUST ENRICHMENT WHICH , IN ITS VIEW , PAT COULD MAKE AGAINST MR MALHE .
4 ON THE BASIS OF THAT ORDER AS-AUTOTEILE BROUGHT AN ACTION FOR PAYMENT AGAINST MR MALHE BEFORE THE LANDGERICHT ( REGIONAL COURT ) BADEN-BADEN . THE DOCUMENTS BEFORE THE COURT DO NOT REVEAL ON WHAT BASIS THE PROCEEDINGS WERE BROUGHT BEFORE THAT COURT . IN ANY EVENT , THE LANDGERICHT BADEN-BADEN HELD THAT IT HAD JURISDICTION , AND BY A JUDGMENT DATED 17 NOVEMBER 1981 IT ORDERED MR MALHE TO PAY TO AS-AUTOTEILE A SUM REPRESENTING HIS UNJUST ENRICHMENT AT THE EXPENSE OF PAT , IN AN AMOUNT NOT EXCEEDING THE DEBT OWED BY PAT TO AS-AUTOTEILE .
5 MR MALHE APPEALED AGAINST THAT JUDGMENT TO THE OBERLANDESGERICHT ( HIGHER REGIONAL COURT ) KARLSRUHE , WHICH HELD ON 15 OCTOBER 1982 THAT UNDER ARTICLE 2 OF THE CONVENTION IT HAD NO JURISDICTION , SINCE THE ALLEGED DEBTOR WAS DOMICILED IN FRANCE . ACCORDING TO THE OBERLANDESGERICHT , THE FRENCH COURTS HAVE JURISDICTION IN SUCH A CASE . AS-AUTOTEILE ' S APPEAL TO THE BUNDESGERICHTSHOF AGAINST THAT JUDGMENT WAS DISMISSED BY AN ORDER OF 7 NOVEMBER 1983 . THE QUESTION OF JURISDICTION OVER THE SUBSTANCE OF THE CASE HAS THEREFORE BEEN SETTLED .
6 ON 17 DECEMBER 1982 , WHILE THE PROCEEDINGS WERE STILL PENDING , THE LANDGERICHT BADEN-BADEN MADE AN ORDER FOR COSTS AGAINST AS-AUTOTEILE . SINCE THAT ORDER WAS IMMEDIATELY ENFORCEABLE , AS-AUTOTEILE GAVE MR MALHE A BANK GUARANTEE IN THE AMOUNT OF DM 40 000 , IN ORDER TO AVOID ENFORCEMENT PROCEEDINGS ; MR MALHE IS STILL IN POSSESSION OF THE INSTRUMENT OF GUARANTEE .
7 AS-AUTOTEILE THEREUPON LODGED AN APPLICATION TO OPPOSE ENFORCEMENT BEFORE THE SAME COURT , UNDER PARAGRAPH 767 OF THE GERMAN ZIVILPROZESSORDNUNG ( CODE OF CIVIL PROCEDURE ), WHICH PROVIDES AS FOLLOWS :
( 1 ) OBJECTIONS AGAINST THE JUDGMENT DEBT ITSELF MUST BE RAISED BY THE DEBTOR BEFORE THE COURT WHICH HEARD THE MATTER AT