Bertacco v Bancel and Scholtus

JurisdictionFrance
CourtCommercial Court (France)
Docket NumberCase No. 201
France, Tribunal de Commerce de Saint-Étienne.
Case No. 201
Bertacco
and
Bancel and Scholtus.

Treaties — Termination of — Clause rebus sic stantibus.

Treaties — Operation of — Impossibility of Performance in the Territory of the Other Party — Whether a Valid Reason for Refusal of Application — Doctrine rebus sic stantibus.

The Facts.—On January 19, 1935, Umberto Bertacco, son of the claimant, while riding on a bicycle from Firminy to Vigneron was killed, it was alleged, through the combined negligence of the defendants, the two car drivers. Bertacco's father, an Italian subject resident in Italy, claimed damages on behalf of himself and of the infant children of the deceased. The defendants demanded that the plaintiff should give security for costs under the general rule of Article 166 of the Code of Civil Procedure. It was admitted that, under normal conditions and by reason of treaty provisions, Bertacco being an Italian subject would be exempt from furnishing such security. But the defendants argued that the effect of the proclamation of sanctions under Article 16 of the Covenant of the League of Nations against Italy was to suspend the treaties between France and Italy and to leave Bertacco as the subject of a State with whom there was no existing treaty in force.

Held: that the effect of the measures imposed as sanctions against Italy was to suspend the protection given to the plaintiff by the Treaty of the Hague of July 17, 1905. “In every international treaty there is always implied a resolutive condition in cases where one of the contracting parties finds it impossible to...

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