The Reserved List: Corentin’s Legal Corner Part 2

Hi All – I’ve been very lax and not posted another monster legal opinion from our legal friend, Corentin. Here it is, in all its unedited glory!

Finally, regarding the reserve list. A few new elements have been drawn to my attention regarding the first opinion I sent to you.

My opinion was about the English common law, and I did not know at that time whether it was different from the US common law when it came to that area of torts, contracts and equity.

I had opened my opinion with the following:

As an introductory point I would like to stress that this statement is not a contract on its own since no one could have given consideration to make it binding, and that the doctrine of estoppel only apply for a variation of contract and will not be applicable in this case.

Well I was informed that in many jurisdictions of the United States, promissory estoppel is indeed an alternative to consideration as a basis for enforcing a promise. It is also sometimes called detrimental reliance.

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

So this opens a whole new way for Wizard to be made contractually liable for the statement. I am not an expert, at all, in US Law, but this seems to be an acknowledged distinction between the UK and the US common law.

Then, and just for the sake of discussing international private law, I can hear you asking: but, Corentin (with your extraordinary accent) what is the law applicable to the contract and or tort? I am glad you asked Stue, I am glad you asked. 
Let’s divide this in two part, first if you sue on contract, then if you sue on tort.

A: Contract
If you were to sue Wizard in England in contract , the first question would be to know whether England has jurisdiction. Then, the law applicable.

1 Jurisdiction
We look at REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2012. Art 8 tells us that subject to art 18 (1), the
jurisdiction of the courts of each Member State shall be determined by the law of that Member State.

Article 18
1. A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.

You are a consumer for the purpose of the text, so yay! You can sue Wizard in England. 
2 The Law


We look at REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL.

First, 

Article 2
Universal application
Any law specified by this Regulation shall be applied whether or
not it is the law of a Member State.

Just to let you know that the Regulation may well tell us that the US law should be applied. It does not matter whether the judge is English, he may have to apply the law from a foreign country.

Article 4
Applicable law in the absence of choice 

1. To the extent that the law applicable to the contract has not
been chosen in accordance with Article 3 and without prejudice
to Articles 5 to 8, the law governing the contract shall be
determined as follows: 

We are suing Wizard on the contract, assuming that the statement regarding the reserved list was indeed a contract. You are one collector that rely on this statement to protect the value of your cards.
I am not detailing the list of possible contracts, although this is pretty cool to explain, I think this pretty boring for a normal person. Let’s skip to Article 6, mentioned in Article 4.

Article 6
Consumer contracts
1. Without prejudice to Articles 5 and 7, a contract concluded
by a natural person for a purpose which can be regarded as being
outside his trade or profession (the consumer) with another
person acting in the exercise of his trade or profession (the
professional) shall be governed by the law of the country where
the consumer has his habitual residence, provided that the
professional:

(a) pursues his commercial or professional activities in the
country where the consumer has his habitual residence, or
(b) by any means, directs such activities to that country or to
several countries including that country,

and the contract falls within the scope of such activities

You are still a consumer, a natural person, Wizard is directing his activity to England. So the applicable law would be English Law. And I explained that, according to my opinion, such a statement would not create a binding contract with Wizard. So, sad face, as you would put it.

BUT WAIT, there’s more! 
B: Tort
If you were to sue Wizard in England in tort, the first question would be to know whether England has jurisdiction. Then, the law applicable.

1 Jurisdiction

Again, we look at REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2012. You are still a consumer for the purpose of the text, so you can sue Wizard in England.

2 The Law

We turn to REGULATION (EC) No 864/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)

Article 4
General rule
1. Unless otherwise provided for in this Regulation, the law
applicable to a non-contractual obligation arising out of a
tort/delict shall be the law of the country in which the damage
occurs irrespective of the country in which the event giving rise
to the damage occurred and irrespective of the country or coun-
tries in which the indirect consequences of that event occur.

In short, applicable law is the English law, as your damage occurs in England for you the consumer. You do not live in the US, and there is no manifestly closer connection to the US in such a case. 
Therefore, it is my opinion that we would apply tort law, and I stand by my first opinion on the subject.

It would be slightly different if we were to look at the position of a professional company, like starcity game but in Europe (let’s say MkM). But I suspect I may have to look in German international private law for that one, and I am not bored enough to do it. Yet.

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