Contracts, Pigeonholes and Irish-Bulgarian Connections. Cross-Border Litigation on Property Service Charges: Kerr v Postnov and Postnova
| Published date | 01 January 2020 |
| Pages | 82-88 |
| Date | 01 January 2020 |
| DOI | 10.3366/elr.2020.0602 |
International private law (“IPL”) is heavily dependent on characterising legal relationships. The exercise of characterisation essentially requires a judge to decide in what IPL “pigeonhole” (or category) an action should be put.
A couple domiciled in Dublin, Ireland owned an apartment in a building in Bansko, Bulgaria. At the annual meetings of the apartment owners in that building held between 2013 and 2017, several decisions relating to annual financial contributions for the maintenance of the communal areas were adopted. The Dublin domiciled couple, however, failed to fulfil their obligation to pay these contributions. As a consequence, the building manager commenced proceedings against the couple in the district court of Razlog, Bulgaria in order to obtain payment of the arrears together with compensatory damages.
The district court refused jurisdiction as the defendants were not present in the jurisdiction of the court. The building manager appealed this decision to the Blagoevgrad regional court. In the course of the appellate proceedings, multiple issues of characterisation arose as to whether the obligation in question was a “matter relating to a contract” and, if so, whether it related to the provision of a service.
The building manager argued that the district court had jurisdiction since the place of performance of the couple's obligation to pay contributions was located in the court's jurisdiction. In arguing so, the question arose whether jurisdiction of the place of performance – enshrined in Article 7(1) Brussels Ia – was applicable.
As such, the key question was whether it was possible to sue the couple in Bulgaria. Absent that possibility, the practical complications for the building manager to obtain a judgment ordering the payment of the contributions would increase. A liability claim – such as the one at hand – which is not contractual in nature may be a matter relating to tort, for which Article 7(2) Brussels Ia contains a separate and specific rule of jurisdiction. However, when the tort constitutes pure economic damage (i.e. other than material or corporeal damage), as would be the case in
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