GO DOWN, MOSES...
LET MY PEOPLE GO

The Western world looks at slavery as a criminal practice from the past, from the enslavement of the Jewish Nation by Egypt in ancient times to the transatlantic slave trade, which legally ended in the 19th century both in the USA and in the colonies ruled by European countries. While it seems in the 21st century that slavery has been completely eradicated in most of the world, there are still a few countries, which still practice this brutal form of labor. The sad and simple truth is that slavery still exists today, even though it may appear that there are no slaves working in cotton fields and plantations. “Millions of men, women and children around the world are forced to lead lives as slaves. Although this exploitation is often not called slavery, the conditions are the same. People are sold like objects and forced to work for little or no pay and are at the mercy of their employers.” This definition comes from the following Website, http://www.antislavery.org/homepage/antislavery/modern.htm. Let us not forget our own history in the fight for freedom; we must continue to help others who are struggling.

ANTI-SLAVERY CONFERENCE AT THE AMERICAN CHURCH IN PARIS
On Wednesday April 15th, the American Church in Paris hosted a conference on modern slavery with speakers Dr. Feingold and Dr. Peters from the UNESCO office in Bangkok, Ms. Gemma Wolfes of Anti-Slavery International in London, and Ms. Sophea Lakhdar of the Comité Contre L’Esclavage Moderne. I have been keenly interested in this topic since I first encountered it about fifteen years ago when the Comité Contre l’Esclavage Moderne launched a media campaign. They had put the faces of about a dozen people they had rescued on billboards throughout Paris and I recognized the face of a member of the American Church! Later I spoke with this woman and learned more about her background and the French organization that had helped her. Although this was quite a while ago, the recent conference brought back some disturbing memories.

Ever since that first encounter, I have continued to help promote the good work of this NGO.

At the conference, one topic especially caught my attention. It described the various ways a modern slave can be perceived by society. In France the Comité Contre L’Esclavage Moderne deals mostly with people working as domestic servants, such as nannies, cleaning people or cooks, and most of the abuse happens behind closed doors and out of view of the outside world. To bystanders, all nannies look alike and it is difficult to ascertain who has proper immigration documents and who does not, or who is being maltreated and who is not. For example, a traditional Asian woman normally walks looking down at the ground, avoiding direct eye contact, and concentrating only on the children she is picking up or walking to school. This appearance of complete submission is a reflection of her culture and does not necessarily reflect her working conditions. Cultural differences like this could lead to false conclusions concerning the person’s working conditions.

One speaker at the conference stated several times that it is only the slaves themselves that can change their bad situation by talking about their maltreatment to a third party, and that, only after they have overcome the fears ingrained in them by their masters. Since an employer immediately confiscates the ID cards or passports of their victims, these people have no papers and their greatest fear is that if they go to the police, they will be put in jail permanently or sent back to their home country. The reality is that the victims who are caught by the police are put in contact with the NGO, Comité Contre l’Esclavage Moderne, as soon as they reach the detention centers (centres de rétention administratifs). Later, when they are released, they are able to take their employers to court and almost always win the legal right to stay in France and often recover owed salary, which is awarded to them by the labor court. This can be a substantial sum with which to start a new life in France. In effect, the police are allies in these situations, but it is difficult to convince the slaves of this!

After the conference, most of us gathered in the adjacent room where I exchanged views with an Asian woman. The discussion became extremely interesting when she described a situation that she had endured for several years. Although this was some time ago, her situation totally fit the definition of modern slavery discussed above. Until she attended this conference, she had never thought of her working conditions as a form of slavery, but only as harsh working conditions that she had wanted to escape from as soon as possible. It took her some time and determination, but she finally found a safe way of leaving her employer. It required walking out on very short notice, without papers, without much money, and nowhere to live. If freedom bears this cost, it must really be worth it!

During our conversation some disturbing questions arose. If people do not perceive themselves as being treated as slaves, especially if the working conditions are considered “normal” in their own country, what can motivate them to leave these heinous situations? How can they learn that we, in the West, consider their working conditions a form of slavery? Even if we speak their language, why should we assume that they will understand our criteria of what constitutes slavery? The Asian woman with whom I was speaking agreed that she would not have understood or believed any Westerner, male or female, who tried to offer help during the period she was enslaved. These ideas were completely outside of her frame of reference and it would have been simply impossible for her to believe in them. However, she did feel, had she encountered another Asian woman who spoke the same language and shared her culture, and who also understood Western concepts of slavery, that this person may have been able to convince her that there was hope and help out there, and that she had the right to it. Fortunately for my interlocutor, she was able to get free from her situation on her own.

Therefore what is needed to help these victims is what I call “inside messengers,” a person from the same culture as the victim, who may have endured a similar situation, and who knows the laws in the country and understands what constitutes slavery. I believe that conferences, such as the Antislavery one I attended, are essential in raising public awareness of these situations. However, they cannot bear fruit until the information is passed on to the victims, and this almost always requires the help of “inside messengers” acting as a living bridge between cultures and, as such, being masters of both frames of reference. These people are crucial in linking cultures since their message carries credibility. Who the messengers are makes all the difference in communicating with the victims.

Our Western world often asks why change does not happen more often in other countries and why democracy and human rights are not more widespread in the world. One of the reasons is that these concepts did not exist in these countries until globalization enabled the Western media to cover the world. Such countries need time to assimilate new ideas into their cultures so that they are not just buzzwords with little meaning for the people. If we are serious about improving the situation in the world, we need to nurture these “inside messengers,” whose tasks are difficult and who are often exposed to dangers.

Unfortunately these “inside messengers” are faced with prejudice and racism in our society and we rarely think of them as possible allies in the flight against modern slavery. In their own communities and even within their own families, they are often considered “strangers,” or even traitors. They are perceived as supporting western culture instead of their own ethnic group and are deprived of emotional and economic support while living in a foreign country.

A BIG BIRTHDAY AND TURNING SILVER
At the end of June I may be away from my desk for a couple of days or so since my birthday is on the 29th. This year it will be one of the big O’s. Ten years ago a full-scale surprise birthday party was thrown for me, a huge success (!), and it coincided with the arrival of my first gray hair. This said, I still feel that I have a lot of energy and that I have so much to do in my life that I look forward to carrying out my projects over the next decade or so. In recent years I have helped more and more people coming from Southeast Asia, and now my “elderly look” - I’m totally silver now - is a bonus for me, and is synonymous for wisdom in their culture, i.e., the authority of the elder. Growing visibly older is not always easy in today’s world, which celebrates youth. In any case, I am sorry for any inconvenience that my absence might create while I am celebrating with my family and close friends.

OFFICE CLOSED FOR SUMMER VACATION
Summer is coming up and I would like to let my readers know that the office will be closed from Friday, July 17th until 9am Monday, August 31st. As always, I can be reached during this time by email for emergencies and important matters. The service I offer, that of receiving mail for clients, will continue while the office is closed. In due time, I will give individual clients the information necessary to receive or retrieve their mail during this period.

Best regards,

Q & A

THE RETURN POLICY IN FRANCE

QUESTION
I have been living in Paris for many years and would like some explanation regarding a situation I have encountered with a merchant and how he handles returned merchandise.
I recently bought one meter of chain for a chandelier for a total cost of 236€ which was paid in cash. Three days later I returned the chain and was told by a clerk and the manager that I could not have a cash refund and would be given a store credit voucher (un avoir) valid for 3 months. 236€ buys a lot of light bulbs and I have no intention of shopping there again, in spite of the excellent help I had in choosing the chain. Nowhere on the bill, nor on any other printed material available to the client, was an explanation of their refund policy. Do I have any rights in this case to a cash refund, or do I stock up on light bulbs?

ANSWER
I have very bad news for you - you should start "stocking up on light bulbs" as soon as possible. The very notion of “a return policy” issued by merchants, as we understand it in the USA, does not exist in France. Furthermore, at best, such a policy is nothing more than “goodwill” by the merchants who want to please their clients. Indeed, the legal concept of what constitutes a sale in France prevents the existence of a widespread return policy.

According to French law, when two or more parties agree on an item and its price, the sale is final, i.e., the deal is done. On the other hand, a new agreement can be made provided that all the parties involved agree to it. When I apply this legal concept to your case, initially, you bought the chain and walked out of the shop; the contract was complete. If you want to return an item that has no defect, then you must accept what the merchant offers, a store credit voucher in this case, and thus you have a new contractual relationship established. If you don’t accept the store credit voucher, you have no choice but to return home with the item in your hand, which is the result of the first contract you had with him. The situation is totally different when a return policy is mentioned, and even better if it is posted in various places in the shop. The merchant must then comply with his own policy since the first contractual agreement includes this option.

In your case, you have absolutely no legal leg to stand on when you demand a cash refund. Indeed, going strictly according to the narrow application of the legal concept of a sale in France, your desire to return the item to the store and get your refund in cash is a breech of the existing contract, and therefore theoretically you are opening yourself to a liability claim. Since you now have a store credit from the store, you have established a new contract and it is therefore in your best interest to use it up before its expiration date.

The rule of thumb in France is to only buy something that you are absolutely certain that you want. The alternative is to buy only after checking that the merchant has a return policy in writing. In many ways, the French consumer is heavily protected from numerous risks but no law has ever nailed down this very specific issue because the French assume that the client knows what he is doing when he buys something.

THE STATUS OF AN “I OWE YOU” IN FRANCE

QUESTION
I am an American citizen and I reside in the UK. I lent a considerable amount of money to a friend who has now moved to France with her husband. My solicitor in England is attempting to put a legal lien on a property they have in England, although the property is subject to a large mortgage and thus has little equity.
The couple also owns a substantial piece of real-estate in France, where they are domiciled. They are not responding to letters from my English solicitor and it would appear that they have no liquid assets with which to return my loan. Can you advise me of any redress I might have under French or European law? The amount in question is £75,000.

ANSWER
Your situation is a lot more complex than what meets the eye. The first reflex of a French lawyer would be to very carefully study the documents, the handwritten note in your case, which substantiates your claim that you are owed this money. In France it is against the law for a private individual to lend money and be repaid with interest, since this represents working as a bank and you have neither a license nor special approval to do this. Also, a handwritten document signed by this person without anything that makes it an “official document” leaves little leeway in France to successfully prove the reality of the debt and get your money back. Keep this in mind while I go through the explanation.

Since you say nothing about where the lawsuit is about to be filed, I need to look at two possible scenarios, which would result in two very different answers. There are numerous elements to consider in order to determine which jurisdiction, French or British, is competent to hear this case. The normal rule, stated by French law, is that the court is defined by the location of the residence of the defendant, but there are exceptions. There is also a need to define residency for someone who owns a piece of real estate in both countries and who might not have claimed France as being the country of fiscal residency, i.e., the primary residency.

Here are two possible scenarios:

1 - The entire lawsuit occurs in the UK
This means that your goal is to get a court order validating your “I owe you” in the UK. In this case, the location of your friend’s assets is pretty much irrelevant. Your initial goal is to get a court order acknowledging the fact that it has been proven that she owes you the money and that she has not paid it back.

Once you have this court decision in your hands, then you get the de Hague Apostil and you have the decision officially translated into French. This "French court order" can be used to collect the money in France and to put a lien on the house in France. So, as you can see, this is a British procedure for the most part and especially the most crucial part, the one that defines what constitutes a valid “I owe you” document.

2 - The entire lawsuit occurs in France
This would be the normal situation if the basic rule of jurisdiction is applied. This means that you need a French lawyer to take the matter to court and you need to have sufficient proof to comply with the French legal requirements. It is essential to understand that it is not because the handwritten IOU is valid in the UK that you will substantiate your case in a French court of law, it is because the French court has the obligation to handle the foreign document according to the legal requirements of the country where the document was written, in this case, Great Britain, although there is indeed a limit to the flexibility of a French judge. Therefore, even though on paper the two procedures should give you the same result, the reality is that your chances of getting a favorable court decision are a lot slimmer if you file in France.

Face with your situation, the normal thing to do would be to do some legal research and be certain that you are filing with the right jurisdiction, but my practical advice is very different. Since it is a British document and you have a British lawyer and you live in the UK, you should file with the British court using the couple’s British address and see what happens. The goal here is to create a situation where you are doing the most normal thing and everything you present to the court fits this setting since your opponent is a British resident.

Now I would like to look at the different outcomes of a court case filed this way. It is conceivable that this procedure alone scares her enough that she starts paying you after receiving the court case documents. Another possibility would be that she at least responds to you, thereby acknowledging the existence of the loan, which then would really strengthen any court case you would have in France. Another possibility is that she fights this case as a British resident. The last possibility is that her British lawyer claims that the British court is territorially incompetent, and proves her French residency and so on. As you can see, only this last situation is detrimental to you to a certain extent, and therefore it is really worth the effort to take the procedure as far as the British system allows you to go and get a British court decision. This would be so much better than going through scenario 2, i.e., starting in the French court system.

I would also like to review what would be the next step, that is, carrying out the collection effort in France, if your lawsuit occurs in the UK. As stated above, the British court decision bearing the de Hague Apostil accompanied by its official French translation is a French legal document and you can have French professionals act upon it.

So the very first thing I would do would be to hire a huissier who will try to collect the money at their French house and therefore serve your friend with the court decision. This should have a serious impact on her since it shows that this matter is now happening in France and that the Channel is not protecting them at all. Ideally the same day, the huissier should have all of the woman’s French bank accounts blocked to secure the payment. Even if there is not much money in the accounts, living in France without an operating bank account is an extreme handicap since a lot of services are paid through bank accounts. If she continues not to pay you then you should put a lien, a “hypothèque” on her French property.

It is very possible that she will contest all these actions in a French court of law. In this case, the situation would be completely different, since there is now an existing court decision from the UK. The procedure is called “exequatur” and is simply the process of deciding if the foreign court decision is compatible with French law. I do not see anything in French law that contradicts collecting money that has been awarded to you by a British court. The French court might go as far as looking at the proof you have in your possession when you went to court in Britain, but I do not see the French judges starting the debate of whether the documents you have used in the British court case are valid in France; that was the job of the British court.

As you can see, your chances of winning the French court case would be much better with the legality of the handwritten IOU having been previously established by a British court, and then you would have the full power of the French collection procedures at your disposal. Even though it might seem strange to start the process in the UK and may also appear to be a waste of time, I believe your chances of having the handwritten note declared legal are far greater in the British court. This would be an enormous benefit in the long run and would increase your chances of obtaining more proof, which would strengthen your position as you go along. I would call this strategy building a fishnet. It can be used as a trap; the further you can get with the British procedure, the better the trap. One last thing, try to get detached from this procedure as quickly as possible since there is no quick solution to it. Stated differently, this is going to be a long chess game and lawyers know how to play it very well, so you should stop being personally involved.