#5021 - Rosler - Conflict of Laws BCL

Rosler (1985)

Facts

By a written agreement dated 19 January 1980, horst rottwinkel, the plaintiff in the main proceedings, let a flat in his holiday villa at cannobio in Italy to erich rosler, the defendant in the main proceedings, for the period from 12 July to 2 August 1980. The rent agreed for four persons was dm 2 625. By the terms of the agreement visitors were not allowed to stay overnight. The incidental charges for gas, water and electricity had to be calculated according to the quantities consumed and there was also an extra charge for cleaning at the end of the letting. The parties further agreed that the agreement was to be governed by German law, that bielefeld was to be the place of performance and that its courts were to have jurisdiction.

The plaintiff in the main proceedings spent his holiday in the holiday villa at the same time as the defendant…. On 7 January 1981 the plaintiff sued the defendant in the landgericht (regional court) berlin, for damages and for the payment of outstanding incidental charges. He claimed that throughout the holiday the defendant had accommodated more than four persons in the holiday home which caused the cesspool constantly to overflow, creating an intolerable smell, and was a considerable nuisance owing to the noise.

He claimed damages from the defendant for loss of holiday enjoyment, founding his claim on a breach of the lease, and sought reimbursement of the costs of travelling to the holiday resort. He also claimed, under the terms of the lease, payment of incidental charges in respect of gas, electricity and water and of cleaning at the end of the letting.

Questions

(1) is Article 16 (1) of the convention applicable if a lease concluded between persons resident in the Federal Republic of Germany is for the short letting only of a holiday home located in Italy and the parties to the lease have agreed that German law is to apply?

(2) if Article 16 (1) is applicable, does it apply to actions for damages for breach of the lease, particularly for compensation for loss of holiday enjoyment and for the recovery of incidental charges payable under the lease?

Holding

Rationale for the rule under Art. 22

The raison d’etre of the exclusive jurisdiction conferred by Article 16(1) on the courts of the contracting state in which the property is situated is the fact that tenancies are closely bound up with the law of immovable property and with the provisions, generally of a mandatory character, governing its use, such as legislation controlling the level of rents and protecting the rights of tenants, including tenant farmers.

Article 16(1) seeks to ensure a rational allocation of jurisdiction by opting for a solution whereby the court having jurisdiction is determined on the basis of its proximity to the property since that court is in a better position to obtain first-hand knowledge of the facts relating to the creation of tenancies and to the performance of the terms thereof.

Short-term holiday letting - principle of certainty and predictability

The question submitted by the bundesgerichtshof is designed to ascertain whether exceptions may be made to the general rule laid down in Article 16 owing to the special character of certain tenancies, such as short-term lettings of holiday homes, even though the wording of that Article provides no indication in that respect.

It must be emphasized in this regard that, as the Italian government has rightly pointed out, inherent in any exception to the general rule laid down in Article 16(1) is the risk of further extensions which might call in question the application of national legislation governing the use of immovable property.

Account must also be taken of the uncertainty which would be created if the courts allowed exceptions to be made to the general rule laid down in Article 16(1), which has the advantage of providing for a clear and certain attribution of jurisdiction covering all circumstances, thus fulfilling the purpose of the convention, which is to assign jurisdiction in a certain and predictable way.

The reply to the first question must therefore be that Article 16(1) of the convention applies to all lettings of immovable property, even for a short term and even where they relate only to the use and occupation of a holiday home.

Only disputes as to the “tenancies” are included

With regard to the second question, it must be noted that the convention grants exclusive jurisdiction 'in proceedings...