TAM WING KWONG AND OTHERS ν. SPYROS ANASTASSIOU (V21) 1 CLR 123

TAM WING KWONG AND OTHERS ν. SPYROS ANASTASSIOU (V21) 1 CLR 123 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V21) 1 CLR 123 1956 May 8 [HALLINAN, C. J. and ZEKIA, J.]

1. TAM WING KWONG,
2. SHIU WAI MING,
3. TAM YICKAOU of Hong Kong, Appellants, v. SPYROS ANASTASSIOU of Limassol, Respondent. (Civil Appeal No. 4152) Contract-Proper law of the contract-Presumption that English and foreign law identical. Even where the proper law of the contract is not English law, the foreign law will be held to be identical with the English law respecting the matter in question in the absence of satisfactory proof. Appeal by plaintiffs from the judgment of the District Court of Limassol (Action No. 1393/51). M. Houry with J. Jones for the appellants. A. P. Anastassiades with A. Myrianthis for the respondent. Appellants-plaintiffs claimed from respondent-defendant: (A) £141.11.5 as damages for the breach of an agreement to sell 50 tons of potatoes; (B) £1,473.0.5 damages arising from the breach of conditions and warranties of a contract of sale for 50 tons Lebanese onions. The particulars of claim (B) were as follows: "By letters and telegrams exchanged between the parties, between the dates 10.1.50 and 8.3.50 respondent sold and delivered to the appellants 50 tons Lebanese onions at £27 less 3% commission, per ton c.i.f. Hong Kong and shipment from Beirut." The question of what law was applicable to the contract for the sale of onions was discussed and determined in the following passage taken from the judgment of the Supreme Court delivered on 8.5.56 by: ZEKIA, J.: "In the first place it is necessary to ascertain the law applicable to this contract of sale in relation to the consequences of the alleged breach of such contract by the seller, the respondent. The place of performance was Lebanon. We read from Dicey's Conflict of Laws, 6th Edition: 'Second Presumption: When the contract is made in one country, and is to be performed either wholly or partly in another, then the proper law of the contract may be presumed to be the law of the country where the performance is to take place (lex loci solutionis). The presumption may, in a given case, be applicable only to certain aspects of a contract. It will usually apply to the mode of performance as distinguished from the substance of the obligation.' This principle was followed by the Privy Council in the case of Benaim & Co. v. Debono, reported in 1924 Appeal Cases page 514, at page
4. Of course this is not conclusive, and one might find from the way the contract was concluded and the terms accompanying certain aspects of the contract, that the parties to this agreement intended English law to govern their case. In the French Cigarette Paper Co. Ltd. of London v. Marsellos & Savvides, XIII C.L.R. p. 12 at page 20 it is stated: 'We are of opinion that when two parties enter into a c.i.f. contract for the sale of goods they may be presumed to have intended that their contractual relations under that contract shall be determined by English Law.' However, for reasons I will presently explain, whether the principle have cited or the terms of the contract entered into between the parties are considered, the law applicable to this case is the English Law. There is no evidence as to the Lebanese Law, and on the authority taken from the same book on page 866 in the absence of a satisfactory proof the foreign law will be held to be identical with the English law. 'Rule 194.-In any matter to which in the opinion of an English court foreign law is applicable, any differences alleged to exist between foreign and English law must be proved by expert evidence to the satisfaction of the Court, as matters of fact, not of law, and in the absence of satisfactory proof the foreign law will be held to be identical with the English law respecting the matter in question.' For the same reason English law is applicable to the contract of potatoes which we have dealt with earlier in our judgment. The place of performance there is Port Said, and no evidence as to Egyptian Law." cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο