Brietenbucher v Wittke [2008] ScotCS CSOH_145 (16 October 2008)

Brietenbucher v Wittke [2008] ScotCS CSOH_145 (16 October 2008)

Clause 11 of the contract does not confer exclusive jurisdiction to the Stuttgart courts because the defender is not a merchant under German law; therefore, the Court of Session has jurisdiction by virtue of the defender's Scottish domicile.

Citation
[2008] ScotCS CSOH_145
Parties
Pursuer: Dr Bettina Breitenbücher; Defender: Cornelia Wittke
Jurisdiction
Scotland
Judgment Date
16 October 2008
Procedural Posture
Civil / Preliminary Proof on Jurisdiction
Outcome
Defender's first plea-in-law repelled; Court of Session has jurisdiction; proof before answer allowed; expenses reserved.
Legal Topics
Jurisdiction, Choice of Court Clauses, Interpretation of Foreign Law, Merchant Status Under German Law
Private International Law Contract Law Civil Procedure Jurisdiction Choice of Court Clauses Interpretation of Foreign Law Merchant Status Under German Law

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 4 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Dr Bettina Breitenbücher

Pursuer

Cornelia Wittke

Defender

Procedural Posture

Civil / Preliminary Proof on Jurisdiction

Legal Issues

  1. 1 Whether clause 11 of the contract confers exclusive jurisdiction to Stuttgart courts under German law
  2. 2 Whether the defender qualifies as a merchant under German law for the purposes of the jurisdiction clause
  3. 3 Effect of conflicting jurisdiction clauses in contract and terms and conditions

Ratio Decidendi

Clause 11 of the contract does not confer exclusive jurisdiction to the Stuttgart courts because the defender is not a merchant under German law; therefore, the Court of Session has jurisdiction by virtue of the defender's Scottish domicile.

Court Disposition

Defender's first plea-in-law repelled; Court of Session has jurisdiction; proof before answer allowed; expenses reserved.

Orders

  • Repel defender's first plea-in-law
  • Allow proof before answer