CISG CASE PRESENTATION

Canada 12 April 2011 Cour d'appel de Quebec (Frozen lobster tails case)
[Cite as: http://cisgw3.law.pace.edu/cases/110412c4.html]

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UNCITRAL abstract
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DATE OF DECISION: 20110412 (12 April 2011)

JURISDICTION: Canada

TRIBUNAL: Cour d’appel de Quebec

JUDGE(S): Paul Vezina, J.C.A.

CASE NUMBER/DOCKET NUMBER: 200-09-007265-116 (110-17-000481-102)

CASE NAME: Mazzetta Company, l.l.c. c. Dégust-Mer Inc.

CASE HISTORY: Superior Court [District of Gaspe] 10 December 2010

SELLER'S COUNTRY: Canada

BUYER'S COUNTRY: USA

GOODS INVOLVED: Frozen lobster tails

UNCITRAL case abstract

CANADA: Quebec Court of Appeal 12 April 2011
(Mazzetta Company, l.l.c. c. Dégust-Mer Inc.)

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/123]
CLOUT abstract no. 1187

Reproduced with permission of UNCITRAL

Abstract prepared by Geneviève Saumier, National Correspondent

A contract for the sale of frozen lobster tails was concluded orally between the seller in Quebec and the buyer in Illinois. The lobster was delivered in New Hampshire but the price was apparently not paid and the seller sued in Quebec. The only possible ground for jurisdiction in Quebec was that one of the contractual obligations was to be performed in the province (Art. 3138(3) Civil Code of Quebec, hereinafter CCQ). The seller alleged that payment was due in Quebec, thereby satisfying the jurisdictional requirement. The buyer challenged this on the basis that the contract being silent on the location of payment, the default rule under Quebec contract law applied and payment was deemed to be due at the buyer’s place of business.

The trial judge considered that the contract had been concluded in Quebec and that since the seller had to perform its obligations in that province, the criterion under Art. 3148(3) CCQ was satisfied; he did not discuss the location of payment or consider the law applicable to that issue. On appeal, the Court of Appeal confirmed the jurisdictional finding but did so exclusively in relation to the place of payment issue. In so doing, the Court of Appeal noted that the issue was to be decided according to the CISG and not according to Quebec contract law.

In deciding that the place of payment was in the U.S. (without mentioning any specific U.S. State), it looked to two provisions of the CISG. First, under paragraph 8(3) CISG, the Court looked to the pattern of payments between the parties. The evidence indicated that over the course of dealings between the parties, payment had always been made in Quebec. Second, under subparagraph 57(1)(a) CISG, the default rule is that payment is due at the seller’s place of business. As the contract was silent on the place of payment, the Court concluded that under the CISG, payment was due at the seller’s place of business. These findings allowed the Court of Appeal to hold that one of the contractual obligations, viz. payment, was to be performed in Quebec, thereby meeting the requirement for jurisdiction under Quebec’s rule for international jurisdiction.

The Court dismissed the appeal without costs because “the CISG was not raised by the parties”. Under Quebec law, if neither party pleads “foreign” law, the Court cannot take it into account (Art. 2809 CCQ). In this case, however, the Court cites a Quebec author who states that where the conditions under subparagraph 1(1) (a) CISG are met, the Convention is “automatically applicable”. The Court did not consider Art. 6 CISG and whether the parties’ reference to Quebec law in their pleadings was an implicit exclusion of the Convention.

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