Jaouad El Majdoub v. CarsOnTheWeb.Deutschland GmbH.
Judgement of the Court of Justice of the European Union (Third Chamber) of 21 May 2015
With its almost recent ruling the Court of Justice of the European Union (hereinafter, CJEU) in the case of Jaouad El Majdoub has focused on the concept of 'click-wrapping ' agreement and its compatibility with Article 23(2) of the Brussels I Regulation. Exclusively, the question of whether the jurisdiction clauses which are incorporated within the general terms and conditions of the electronic contracts via 'click-wrapping ' method could be regarded as a durable record. The case that was referred for a preliminary ruling to the CJEU by the Landgricht Krefeld German Court was …show more content…
III. Procedural History
As to the matter of jurisdiction, El Majdoub alleged that the Landgricht Krefeld is the competent court to proceed with the case because, Cotw as the defendant in the main proceedings is the party to the sale contract which has been concluded between them also it is based in Germany (not in Belgium).
On the contrary, Cotw argued that the courts in Germany are not competent authority to proceed with the case based on two reasons. Firstly, on the website there is an agreement within Article 7 of the general terms and conditions of online sales contracts that grants the jurisdiction to a court in Leuven, Belgium. Furthermore, the defendant in the main proceedings contended that the real party to the contract is the mother company which is established in Belgium while the plaintiff in the main proceedings is well aware of that because the invoice which was sent to him contained the contract details of the mother company and the money was paid to a Belgian bank account.
In spite of this, El Majdoub argued that the choice of court agreement acknowledged in Article 7 is not in writing, so it does not comply with Article 23(1) (a) of the Brussels I Regulation. In addition, the general terms and conditions of the sale contract were incorporated in a webpage which opens through clicking on a click-box indicating to 'click here to open the
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When considering the facts of the Margolin’s lawsuit with the rules of jurisdiction, first one must understand when personal jurisdiction and subject matter jurisdiction would be applicable. As stated in the textbook, “Personal Jurisdiction is a court 's power to render a decision affecting the rights of the specific persons before the court. Generally, a court 's power to exercise in personam jurisdiction extends only over a specific geographic region.” (Kubasek, pg.42, 2009). Before a court can decide to implement control over a person, they require a minimum contact within the district in which the court is over. In this case, the minimum contact was established over the internet when Margolin inputted information over the internet that completed the business transaction. Since the contact is through the internet, and not within boundaries of the state of California or Florida, the court can exercise personal jurisdiction Margolin’s lawsuit over Funny Face and Novelty Now (Kubasek, 2009).
The case is clearly about the email exchanges between both Johannes van den Bosch and his British client, Malcolm Smythe- Jones. However, his colleague at the Mexican City office was in charge of the dealings, hence the differences and the lack in communication.
L1. With the decision from June 13, 2007, and communicated on the same day, the district court presidency Prättigau/Davos ruled between the parties (case no. 130-2006-105):
There is a basic tenet of the contract law for a binding contract. The contract has a requirement of “meeting of the minds” and “a manifestation of mutual assent”. The contracts over the Internet do not change the principles of contracts. The necessity of a valid contract has to have a mutual assent or a mutual agreement. In addition, the Restatement of Contracts states the other party reaches the mutual
Both web contracts and customary contracts must be dealt with similarly, on the grounds that a definitive result that achieves the client is the "item" either obtained through online or through direct showcasing. Subsequently, the web contracts must be dealt with similarly as conventional contracts with the simple reasonable dialect of terms and conditions.
For the reasons stated in Part II, supra, Foreman is distinguishable from this case because--like Saliba-- Foreman is a situation where the court sought to interpret rather than identify the contractual agreement. Foreman, supra, 257 Md. at 443 (“The parties to the contract, after a preliminary oral negotiation, reduced their agreement to writing for the purpose of embodying their contract in its final form.”). Critically, in this case the trial judge found that the B108 document was not executed “for the purpose of embodying their contract in its final form.” Id. Indeed, contrary to Foreman, the question at issue here is not one of contract interpretation but one of contract identification.
Our society today depends upon the free exchange of goods and services in the marketplace at every opportunity. The interactions we encounter in the market depends on voluntary agreements between the parties, which can never become binding without a legal contract.
It is noted that the CISG has had the experience of forming the basis for many regional law reforms projects around the world, such as the African OHADA, the modernised German Law of Obligations, the Draft European Union CESL Regulation, the UNIDROIT Principles etc. But the Swiss draw attention to certain areas that are only applicable to the domestic law, and that are not governed by the Conventions (CISG) provisions. Such areas include duress, illegality, control of unfair terms, plurality of debtors and creditors, and third party rights etc. Essentially then, the Proposal encourages the notion of expanding the subject matter or provisions of the CISG. (Law Wars: Australian Contract Law Reform vs CISG vs CESL,
Enforcing the European Union legal system is diverse and done on multiple platforms; through not only actions taken against member states for breach of their obligations, but also, for example, through the use of direct effect1. Article 267 TFEU; an organism devised to practice private enforcement of EU law before national courts, has been critical to ensure uniform interpretation and application of EU law in member states. References for preliminary rulings occur when the national courts are presented with a question of EU law due to uncertainty of the provision. The national court will therefore ‘make a reference to the Court of Justice (COJ) to obtain a preliminary ruling on any point of EU law relevant to the proceedings’2. In
The CJEU case-law on horizontal direct effect of directives arguably lacks consistency in regards to the application of the general principle. The principle of direct effect was established in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Although there is no set definition of direct effect, a broader definition was provided in Van Gend en Loos that it “can be expressed as the capacity of a provision of EU law to be invoked before a national court.” However, Van Dyun v. Home Office established that directives are capable of direct effect. Furthermore, Marshall v. Southampton established that there could only be vertical direct effect of directives. This stringent principle has arguable ignited the highly contested debate of whether or not horizontal direct effect is applicable to directives or if directives could only have vertical direct effect. However, this essay shall explore the lack of consistency in case-law regarding horizontal direct effect of directives. Firstly, this paper will delve into the case-law of the topic of horizontal direct effect of directives in efforts to try to highlight its consistency in its approach. Secondly, the paper will use case law and the opinion of academics (enter the name of the academics later) to highlight its inconsistencies using the legal mechanisms that have been introduced by the Courts to try to compensate for the lack of horizontal direct effect of directives. Namely, indirect effect, incidental horizontal
The European Union is concerned primarily with proceedings where the defendants is domiciled in the European Union and the Brussel’s Regulation gave, effects to jurisdiction agreements detailed in documents to which at least one party was domiciled in the EU, even if that party was not the Defendant or where the Defendant submitted to the jurisdiction. The Recast regulation expanded the circumstances in which a non-EU domiciled Defendant can be sued in a Member State if the defendant is an employer whose employee habitually works in a Member State or if the defendant is a trader which
The European Court of Justice (ECJ), first created by the European Coal and Steel Community in 1951 is situated in Luxembourg. The court’s main objectives were the interpretation and the consistent and uniform application of the treaty across all Member States. With the exception of the Maastricht Treaty (1992) the ECJ has gained influence through the different treaties over time. The ECJ unlike any other international justice system is able to cooperate directly with its citizens who are able to directly invoke a European provision before a European Court through ‘direct effect’. Further EU law has supremacy over the national laws in individual Member
In September 2014, the European Court of Justice delivered a judgment on Groupement des Cartes-Bancaires v. European Commission. This case was initially decided on by the commission, and then appealed to the General Court of the European Union. When the General Court dismissed the appeal, it appealed to the European Court of Justice (ECJ). After hearing the opinion given by Advocate General N. Wahl (AG Wahl), the ECJ made a decision to quash the General Court’s decision. The case represented the first appeal the ECJ had overturned regarding the restriction of competition ‘by object’ of the measures at issue. It will be shown that this case is the leading authority on the dichotomy of ‘by effect’ and ‘by object’ restrictions of competition.
The summary of the European Court of Justice case: Pez Hejduk v Energy Agentur.NRW GmbH (C441/13)