CISG CASE PRESENTATION

France 8 January 2002 Supreme Court (Société Coq’in v. Société Polarcup Bénélux BV) (Ice cream cups case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020108f1.html]

Case Table of Contents

• Case identification
• UNCITRAL abstract
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)
• Guide to links contained in case presentations

Case identification

DATE OF DECISION: 20020108 (8 January 2002)

JURISDICTION: France

TRIBUNAL: Cour de cassation [Supreme Court]

JUDGE(S): M. Lemontey (président); M. Jean-Piere Ancel (conseiller rapporteur); MM. Renard-Payen, Durieux, Mme Bénas, MM. Guérin, Sempère, Gridel (conseillers); Mmes Barberot, Catrey (conseillers référendaires); M. Roehrich (avocat général); Mme Colet (greffier)

CASE NUMBER/DOCKET NUMBER: Y 00-13.453

CASE NAME: Société Coq’in SA Mac Cold v. Société Polarcup Bénélux BV

CASE HISTORY: 1st instance [ - ]; 2d instance Cour d’appel de Grenoble 19 January 2000

SELLER'S COUNTRY: Netherlands (plaintiff)

BUYER'S COUNTRY: France (defendant)

GOODS INVOLVED: Ice cream cups

FRANCE: Court of Cassation 8 January 2002

Case law on UNCITRAL texts (CLOUT) abstract no. 478

Reproduced with permission of UNCITRAL

A French buyer of tubs of ice cream was ordered by the Court of Appeal of Grenoble, deciding the case in chambers, to pay to the seller, a Dutch company, the total invoiced amount for delivered goods. The French company appealed to the Court of Cassation and claimed that the Court of Appeal had, inter alia, failed to apply article 35 CISG and, on the assumption that CISG did not govern contentious sales, had refrained from determining the law applicable to the contract.

The Court of Cassation rejected the appeal. It ruled that there were no grounds for appeal because the Court of Appeal "was able to conclude from the conformity of the product sold--as defined by CISG of 11 April 1980, which the Court was thus implicitly applying--that the obligation of the buyer to pay the sale price could not seriously be contested, there being no need to further consider the merits of the case in order to determine the applicable law".

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 35

Classification of issues using UNCITRAL classification code numbers:

35A [Conformity of goods to contract: quality, quantity and description required by contract]

Descriptors: Conformity of goods

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Editorial remarks

• Unavailable

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France website <http://Witz.jura.uni-sb.de/CISG/decisions/080102v.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Graffi, Case Law on the Concept of "Fundamental Breach" in the Vienna Sales Convention, Revue de droit des affaires internationales / International Business Law Journal, No. 3 (2003) 338-349 at n.65

French: Muir Watt, Review critique de droit international privé (April-June 2002) 343-345; Rueda, La Semaine Juridique Édition Générale, no. 5 (2003) 180

Queen Mary Case Translation Programme

The First Civil Chamber of the French Supreme Court has made the following judgment:

The judgment concerns the appeal filed by the [Buyer], a limited liability company whose principal place of business is located in Saint-Egreve (France), acting on behalf of the public limited company M.C. whose principal place of business is located in Grenoble, ruling on the judgment of the Court of Appeal of Grenoble (Commercial Chamber) made on 19 January 2000 in favor of the [Seller] whose place of business is located in Groenlo (Netherlands), that is acting as Defendant before the Supreme Court.

In support of its appeal, the [Buyer] invokes the two reasons for reversal included in the present judgment.

The Court held a public hearing on 20 November 2001 in the presence of the following persons: Mr. Lemontay, President; Mr. Jean-Pierre Andel, Council Rapporteur; Mr. Renard-Payen, Mr. Durieux, Ms. Nénas, Ms. Guérin, Ms. Sempere, and Ms. Gridel Counsels, Ms. Barberot and Ms. Catry Counsels, Mr. Roerich, "Avocat General", Ms. Collet, Court Clerk.

Following the presentation of Mr. Jean-Pierre Ancel, counsel, the arguments of SCP C. and N.B., attorney of the [Buyer] acting on behalf of Company M.C., the arguments of Ms. De N., attorney of the [Seller] as well as the pleadings of Mr. R., Avocat General were thereupon deliberated in accordance with the law.

Concerning the two grounds, which were joined and considered in their respective subparts:

The [Buyer] appeals the judgment (Grenoble, 19 June 2000) which ordered [Buyer] to pay the [Seller] the invoiced sums regarding the goods delivered, stating the following:

1. Despite the expert opinion was not contradictory;
2. In deciding on important issues:
3. -  [The judgment] violated the Vienna Convention of 11 April 1980 on the International Sale of Goods; and
4. -  The judgment failed to determine the law applicable to the contract.

The Court of Appeal noted that the expert opinion concerning conformity of the goods sold was submitted to the parties. Deciding on appeal, subject to the power to order provisional measures, the Court was able to conclude from the conformity of the products sold, as defined by the Vienna Convention of 11 April 1980 which the Court was thus implicitly applying, that the [Buyer]'s obligation to pay the purchase price could not seriously be contested, there being no need to further consider the merits of the case in order to determine the applicable law, and that the grounds for appeal were unfounded.

FOR THE ABOVE REASONS

The Court REJECTS the appeal, orders the [Buyer] to pay the costs, and pursuant to Art. 700 of the new Code of Civil Procedure, rejects the claims of the [Buyer] and the [Seller].

This is the judgment of the First Civil Chamber of the Supreme Court, as declared by its President at an open trial on the eighth of January two thousand and two.

FOOTNOTES

* All translations should be cross-checked against the original text. For purposes of this translation, Plaintiff-Appellee of The Netherlands is referred to as [Seller] and Defendant-Appellant of France is referred to as [Buyer].

** Andrea Vincze is a Fellow of the Institute of International Commercial Law of the Pace University School of Law. She received her law degree from the University of Miskolc, Hungary, and her LL.M. at Pace Law School. She is working on her Ph.D. on ICSID arbitration, and is researching international commercial law and ADR.