A German manufacturer’s failure to deliver certain equipment to a Quebec supplier caused the partial nonperformance of the supplier’s obligations to a customer operating a business in Quebec. The customer instituted an action in damages against the supplier in the Superior Court of Quebec. The supplier called the German manufacturer in warranty, and the manufacturer moved to dismiss the action in warranty on the basis of a choice of forum clause in its contract with the supplier. According to that clause, only a German court had jurisdiction. The Superior Court applied art. 3139 C.C.Q. to dismiss the declinatory exception on the basis that the unity of the actions must prevail over the contractual choice of court provided for in art. 3148, para. 2 C.C.Q. The Court of Appeal affirmed the dismissal of the declinatory exception and resolved the conflict between art. 3139 and art. 3148, para. 2 by applying art. 3135 C.C.Q. relating to the forum non conveniens.

Held: The appeal should be allowed. The declinatory exception based on the Quebec authority’s want of jurisdiction should be allowed and the action in warranty in the Superior Court of Quebec should be dismissed.