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Judgment No. 664

Decision

THE COMPLAINT IS DISMISSED.

Consideration 2

Extract:

the service regulations provide for the date on which an appointment takes effect not to be prior to the date on which the official takes up his duties except in case of force majeure. this is "a corollary of the general rule that a unilateral act may not be retroactive." the organisation held "the belief that one term of the contract which governed relations between the two sides had proved unenforceable because of an incident beyond its control." the complainant, who had been injured in an accident, was not fit to report for duty on the date she was due to start; there was not force majeure.

Keywords

exception; force majeure; contract; appointment; accident; date

Consideration 9

Extract:

over the previous three years, the complainant resided continuously in the country where she was to serve. the continuity of her stay was not broken by a two month stay for the purpose of convalescence in another country. the fact that she had to register in the municipality where she was convalescing does not indicate that she intended to interrupt her residence in the country of the organisation's headquarters. it was therefore proper for her to have been recruited on a local basis.

Keywords

local status; residence

Consideration 3

Extract:

"the plea will not succeed if he who alleges force majeure was himself responsible for the occurrence. thus it must fail where he was himself negligent or, though not negligent, put himself in such a position as to incur risk of the occurrence. moreover, the plea will fail even if there is no direct and necessary link between the victim's behaviour and the occurrence." thus, while indulging in a sport like skiing does not constitute negligence, there is no force majeure in the event of an accident during the practice of such a sport.

Keywords

liability; complainant; force majeure; accident; cause

Consideration 9

Extract:

the complainant, who was the victim of an accident, took up duty after the date originally agreed upon. the date on which she took up duty was set as her date of appointment. the delay in her recruitment did not lead to novation of the whole contract. only one of the terms of the contract was altered. the others remained in force and were applied in full. the suspension of the contract did not lead to its annulation. if it had, the organisation might have refused to appoint the complainant when she became fit to start work. "yet that would have been neither fair nor reasonable."

Keywords

amendment to the rules; contract; appointment; accident; date; elements

Consideration 2

Extract:

the material rule "exempts the case of force majeure. the [organisation] submits that [...] the complainant may not allege [force majeure] in the circumstances and that, even if it were established, the president would have discretion in the matter which he exercised correctly. the last part of the argument is mistaken: if there was force majeure the president was bound to accept the consequences in law."

Keywords

force majeure; judicial review; discretion



 
Last updated: 18.10.2012 ^ top