I was very pleased to attend the ISFL Conference in Antwerp in July 2023, my first trip to Europe since the pandemic. It gave me a good opportunity to see old friends and to refl ect on the important role that the ISFL has played in my 40-plus-year career as a family law professor in Canada, and on some of the controversial issues that have been debated in the conferences and publications of the organisation, in particular regarding same-sex marriage.

Some aspects of family law are themselves international law, in particular related to the Hague Conventions, and scholarship by ISFL members in diff erent countries is often directly cited and applied by domestic courts in Canada and elsewhere in dealing with these cases. These international aspects to family law have made the ISFL and conferences organised by prominent members like Prof. Marilyn Freeman especially valuable, providing fora for learning, discussion and debate. In some cases, a scholarly consensus developed at these meetings, such as on the need to better address issues of domestic violence in the implementation of Article 13 of the Hague Convention on Child Abduction. That ultimately resulted in Lady Brenda Hale, myself and some government representatives and Permanent Bureau staff undertaking a project to prepare a Guide to Good Practice on the implementation of that provision of the Hague Convention.

Most of family law is domestic, and in a federal country like Canada, often based on subnational laws, making international perspectives less immediately central, and controversies in other jurisdictions sometimes seem a little less pressing. At the Antwerp Conference, I much appreciated a spirited debate at one session between English colleagues about the minutiae of proper interpretation of the Gender Recognition Act 2004 of the United Kingdom. The issue of the legal status of trans parents is certainly a live issue in my jurisdiction, but we have our own legislative and constitutional context, so the details of the discussion were less interesting to me than witnessing the level of passion and hearing about the social context of the debate.

Depuis cinquante ans, soit approximativement de la fin de la Seconde Guerre mondiale jusqu‘ au milieu des anné es 90 environ les diffé rentsÉ tats desÉ tats-Unis ont vu leurs dispositions juridiques relatives au droit de la famille converger. Au cours de cette pé riode, les cinquanteÉ tats ont dé mantelé le divorce pour faute au profit d‘ options sans faute, transformé les syst e mes opposé s de common law et ré gime matrimonial de communauté en mod e les de partenariat similaires, remplacé l‘ attribution pré fé rentielle de la garde des enfants a la m e re par des principes de garde partagé e, promulgué des mesures fé dé rales qui incitent a des eff orts plus importants en mati e re d‘ exé cution des dé cisions relatives aux pensions alimentaires, reconnu le droit constitutionnel des p e res non marié s a la reconnaissance d‘ enfant et rationalisé les procé dures d‘é tablissement de la paternité. La combinaison des actions desÉ tats, des garanties constitutionnelles, de la pression du Congr e s pour pousser lesÉ tats fé dé ré s a ré former leur droit, de l‘ adoption d‘ actes uniformes a contribué a nationaliser le droit de la famille sans pour autant ré duire le rô le principal joué par lesÉ tats fé dé ré s dans la gouvernance et l‘ administration du droit de la famille.

Les forces qui ont poussé a une plus grande uniformité dans le droit de la famille pourraient cependant e tre en train de s‘ aff aiblir. Les clivages culturels et la polarisation politique accrue font, aujourd‘ hui, du droit de la famille un terrain de division qui rappelle les confl its ayant pré cé dé ce demi-si e cle de convergence. Des questions tr e s mé diatisé es, telles que l‘ avortement et les soins en lien avec les questions de genre, divisent dé sormais lesÉ tats.

Dans de nombreux pays europé ens, les changements lé gislatifs relatifs a l‘ orientation sexuelle, spé cialement en mati e re de discrimination, trouve leur origine dans l‘é volution de la jurisprudence de la Cour europé enne des droits de l‘ homme de Strasbourg. Une grande majorité de la population LGBT+ aé té confronté e a divers types de discrimination et a d u lutter pour l‘é galité de diverses mani e res, mais il s‘ agissait toujours d‘ obtenir lé galement uneé galité de droits et de traitement sansé gard pour l‘ orientation sexuelle. Dans ce chapitre, l‘ auteur analyse la jurisprudence de la Cour europé enne des droits de l‘ homme en mati e re de discrimination lié e a l‘ orientation sexuelle et de droits des personnes LGBT, en mettant l‘ accent sur la Serbie, et donne ainsi un aperç u dé taillé de l‘é volution de la reconnaissance des droits des personnes LGBT dans certainsÉ tats membres du Conseil de l‘ Europe. Cette analyse devrait, en outre, montrer si la jurisprudence de la Cour europé enne des droits de l‘ homme a un impact sur le droit serbe en mati e re d‘ orientation sexuelle et de droits des personnes LGBT. L‘é volution et le dé veloppement de la jurisprudence de la Cour europé enne des droits de l‘ homme en mati e re de discrimination fondé e sur l‘ orientation sexuelle ont donné lieu a une initiative du lé gislateur Serbe : revoir le Code civil serbe en incluant beaucoup plus pré cisé ment l‘ interdiction des discriminations fondé es sur l‘ orientation sexuelle dans le droit positif.

CASE

Duff Inc. are appointed main contractors under a construction contract by Cairn Products plc, to build an apartment block. The contract between Cairn and Duff provides, inter alia, that ‘Duff Inc.'s liability for loss will be limited to $10 million’. Assume this is a valid limitation of liability, not open to challenge.

Duff enter into a subcontract with Spark Ltd, to carry out the electrical work on the apartment block. Due to Spark's negligence in carrying out the electrical works, certain floors in the apartment block are damaged. This will cost $15 milion to rectify.

Given the limit on Duff's liability, Cairn raise proceedings in tort against Spark. Assume that this is a valid claim, the requirements of a relevant claim in tort having been satisfied by Cairn. In defending the action, Spark seek to rely upon the limitation of liability clause in the contract between Cairn and Duff.

Questions

• 1. Can Spark rely on the limitation of liability clause?

• 2. Would your answer to 1 be different if the contract between Cairn and Duff provided that ‘Duff Inc. and its agents’ (including independent contractors’) liability for loss will be limited to $10 million’?

DISCUSSIONS

BELGIUM

Siel Demeyere and Vincent Sagaert

I. Operative Rules

• 1. Spark cannot rely on the limitation of liability clause.

• 2. In this scenario, Spark could rely on the limitation of liability clause.

CASE

Mrs Fidel wants to buy Mr Goodman's house. Mr Goodman appoints Mr Delmonte, a surveyor, to assess the value of the house. Mr Delmonte estimates the value of the house at €700,000. In making his valuation he fails to take into account both the sharp decline in house prices in the neighbourhood in the last month and a remark in an inspection report mentioning heavy soil contamination. Based on Mr Delmonte's valuation report, Mrs Fidel purchases the house for €695,000. The bank, having seen the valuation report, provides a loan to Mrs Fidel for the same amount and takes a security over the house. Three months later, Mrs Fidel is fired from her job, and is forced to sell the house. She decides to do this, as she knows the bank will foreclose when she cannot make her loan repayments, and that this will result in additional costs. She sells the house for only €575,000, and is unable to repay the bank the residual debt.

Question

Assuming there is professional negligence on the part of Mr Delmonte, who can sue him for damages?

DISCUSSIONS

BELGIUM

Siel Demeyere and Vincent Sagaert

I. Operative Rules

Both Mrs Fidel and the bank can sue Mr Delmonte.

Descriptive Formants

Firstly, the professional negligence by Mr Delmonte constitutes a breach of the contract with Mr Goodman. However, Mr Goodman suffered no damage, and was even able to realise extra profit from the sale, thanks to the overvaluation of his house.

The subject of this volume is ‘contracts and third parties’. Although the reader could infer from the title that the scope of the project is restricted to contract law only, that has not been the case. While going through the project and drafting the cases, the editors had some difficulty in identifying the scope of the project.

Narrowly defined, the project ‘contracts and third parties’ could be limited to third-party clauses in contracts, restricting the project to contract law alone. In this case, the contractual parties may, for example, grant a right to a third person in their contract. However, ‘contracts and third parties’ could also encompass cases where a third party may indirectly rely on a contract to which they are not a party, such as a limitation of liability clause in a related contract. In such cases, third-party rights and contract law are very much related to delictual law (unlawful acts, tort law), already expanding outside the field of contract law.

From a broader perspective, ‘contracts and third parties’ will also deal with several separate doctrines, such as agency or representation, tort law (again), property law, assignment, commercial law, insolvency law, general rules of patrimonial law and other parts of the law of obligations. This broader perspective readily appears if a third party is involved in the conclusion or execution of a contract.

THE CONTRACT/TORT DIVIDE

A BLURRING BORDERLINE

It is well known that classical legal thinking imposed a sharp distinction between contract and tort. It considered that contract was the essential manifestation of the power of self-determination of the parties (private autonomy), where the breach of pre-existing obligations created by contract gave rise to different remedies – damages being one of them – that could be claimed either on their own or in addition to other remedies. In tort law, damages were also an important remedy – probably the most important one – but in contrast to contract, liability arising from tort had its origin in the infringement of interests protected by law rather than by private arrangement.

However, this sharp distinction has been eroded over time and no longer reflects the current situation. Even the first European civil codes established obligations between contractual parties which were based, not on the parties’ consent, but on general duties of conduct established by the law, as in the case of good faith in the creation or performance of contracts. Growing state interventionism and the need to protect vulnerable parties have given rise to more obligations imposed by law, as in the case of professional liability, and in some cases even to entirely new areas of law, such as labour law or consumer law. In the tort law area, it is no longer true that all obligations arise independently of the defendant's will.

CASE

Anita decides to rent her husband, Ben, a boat from Anchors Ltd, as a gift. The contract is between Anita and Anchors, and specifies that the crew of the boat will be Ben and four friends.

Ben and his friends take the boat out. They have a great time – so great, in fact, that they are a day late in returning the boat to Anchors. Anchors tell Ben that he will have to pay a late return penalty of €750. Ben refutes this. Anchors draw Ben's attention to clause 14(a) of the contract between Anchors and Anita, which provides for a late-return fee.

Question

From whom can Anchors seek payment of the penalty?

DISCUSSIONS

BELGIUM

Siel Demeyere and Vincent Sagaert

I. Operative Rules

Anchors can seek payment from Anita under the contract. They may, alternatively, be able to seek damages from Ben on a non-contractual basis, as a result of Ben's complicity in contractual breach.

II. Descriptive Formants

This case can be solved in two ways, depending on whether the timely return of the boat, under penalty of the fee, is in the first place conceived as a contractual obligation, or as a burden connected with the clause in favour of a third party. Looking at it from the former point of view, Anchors can seek payment of the penalty from Anita: she is the contracting party and the breach of contract is toerekenbaar/imputable (accountable) to her.

CASE

Sell Co Holdings Ltd (‘Holdings’) is the parent company of a group of companies, The Sell Co Group. Recently, Holdings outsourced certain of the group's IT functions to Digital Age Services Ltd (‘Digital Age’). The contract between Holdings and Digital Age provides, inter alia, that Digital Age will provide certain IT services to the companies set out in a schedule to the contract, from 1 February 2016 until 31 January 2021; that Holdings can add to, remove or replace any company in the schedule on giving written notice to Digital Age; and that Holdings are responsible for making all payments to Digital Age. The schedule lists a number of companies in the Sell Co Group, including Sell Co Direct Ltd (‘Direct’).

Due to a breach of the contract by Digital Age, Direct suffer loss, due to lost sales, in the region of €10 million.

The directors of Holdings make clear that Holdings will not raise court proceedings against Digital Age for breach of contract.

To date, Holdings have sent notices to remove two group companies from, and add another group company to, the schedule to the contract. Direct have not been removed from the schedule.

Questions

• 1. Can Direct take action against Digital Age for breach of contract?

• 2. Would Direct be able to force Holdings to raise proceedings against Digital Age to recover Direct's losses?

In answering the above questions, assume that causation is not an issue, i.e. assume that Direct would be able to prove that the losses they have suffered are as a result of Digital Age's breach of contract.