CYIL Vol. 7, 2016
CYIL 7 ȍ2016Ȏ THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE résidence habituelle au moment où il reçoit la commande. Si la commande est reçue par un établissement du vendeur, la vente est régie par la loi interne du pays où est situé cet établissement. Toutefois, la vente est régie par la loi interne du pays où l’acheteur a sa résidence habituelle, ou dans lequel il possède l’ établissement qui a passé la commande, si c’est dans ce pays que la commande a été reçue, soit par le vendeur, soit par son représentant, agent ou commis-voyageur. In default of a law declared applicable by the parties under the conditions provided in the preceding Article, a sale shall be governed by the domestic law of the country in which the seller has his habitual residence at the time when he receives the order. If the order is received by an establishment of the seller, the sale shall be governed by the domestic law of the country in which the establishment is situated. Nevertheless, a sale shall be governed by the domestic law of the country in which the buyer has his habitual residence, or in which he has the establishment that has given the order, if the order has been received in such country, whether by the seller or by his representative, agent or commercial traveller. 68 International sales of good practically presupposed the possible change of operations of stakeholders. So the concept of habitual residence determined a real and practical attachment of merchants to a specific place. Habitual residence, being a factual concept, could not entail the precision of a point of time. That is why a legal condition of specification of time was included in the hypothesis of the rule in order to reach the desired objective. The employment of the concept of habitual residence thus did not initiate any negative feedback. On the other hand, the debate on the preliminary draft relating to the settlement of the conflicts between the law of nationality and the law of domicile observed the semantic line.The drafting committee considered the content of the concepts of domicile and habitual residence to be almost identical. The committee recognized those concepts as synonyms. The term ‘domicile’ should have been construed as a term ‘habitual residence’, 69 even despite their different character. The concept of habitual residence mainly contains description of facts, i.e. factual circumstances. Equally, the concept of habitual residence does not require any connection with a particular legal system. 70 If semantic merger or synonymy was achieved, one concept would adapt its own substance to the other one. Obviously, the Hague Conference used the concept of habitual residence not only in the field of personal status and the capacity of an individual. It equally spread across German law, where it was originally utilized in their homeland law 68 Convention of 15 June 1955 on the Law Applicable to International Sales of Goods. 69 DE WINTER, Louis. Nationality or Domicile? The Present State of Affaires. Recueil des cours . Collected Courses of The Hague Academy of International Law. Leyden: Martinus Nijhoff, 1969, III, p. 426. 70 Actes VIIe Session , 1951, p. 232.
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