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CISG CASE PRESENTATION

France 19 March 2002 Supreme Court (Footware case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020319f1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20020319 (19 March 2002)

JURISDICTION: France

TRIBUNAL: Cour de Cassation [Supreme Court]

JUDGE(S): Lemontey, president; Renard-Payen, Durieux, conseillers; Sainte-Rosé, avocat general; Aydolot, greffier

CASE NUMBER/DOCKET NUMBER: T 00-14.414, Arrêt no. 526 F-P

CASE NAME: Société T diffusion v. Société M SL

CASE HISTORY: 1st instance [-]; 2d instance Cour d'appel de Rouen 17 February 2000 [affirmed]

SELLER'S COUNTRY: Spain (defendant)

BUYER'S COUNTRY: France (plaintiff)

GOODS INVOLVED: Footware


Case abstract

FRANCE: Court of Cassation 19 March 2002

Case law on UNCITRAL texts (CLOUT) abstract no. 479

Reproduced with permission of UNCITRAL

Abstract prepared by Claude Witz, National Correspondent
with the assistance of Timo Niebsch

The seller, a Spanish company, delivered to the buyer, a French company, shoes with counterfeit ribbons. The holder of the intellectual property right received compensation from the buyer. The buyer brought an action against the Spanish company for reimbursement of the sum of 300,000 francs paid to the victim of the counterfeit and for payment of damages. The buyer's claim was dismissed by the Court of Appeal of Rouen.

The Court of Cassation rejected the appeal lodged against the decision of the Court of Appeal. The Court of Cassation cited the sovereign discretion of the trial judges who found that the buyer could not, as a professional, have been unaware of the counterfeit; therefore, the buyer acted with knowledge of the property right invoked. The Court of Cassation found that the Court of Appeal correctly applied article 42(2)(a) CISG and had properly concluded that the obligation of the seller did not extend to delivering goods free from any intellectual property right.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7(1) ; 42(2)(a) [Also cited: Article 8(1) and (2) ]

Classification of issues using UNCITRAL classification code numbers:

7A3 [Observance of good faith];

42C1 [Seller's obligation to deliver goods free from third-party claims based on e.g., copyright, patent, trademark: seller's obligation not applicable when at time of contract buyer knew or right to claim]

Descriptors: Good faith ; Intellectual property

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=758&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France website <http://Witz.jura.uni-sb.de/CISG/decisions/190302v.htm>; see also Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=758&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 8 para. 39 Art. 42 para. 17

French: Witz, Receuil Dalloz - Cahier Droit des Affairs No. 34 (October 2003) 2366-2367

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Case text (English translation)

Queen Mary Case Translation Programme

Supreme Court (Cour de Cassation), 19 March 2002

Société T diffusion v. Société M SL

Translation [*] by Catherine Piché [**]

Translation edited by Claude Witz and Julia Eisengräber [***]

FRENCH REPUBLIC

In the name of the People of France

[KEY ISSUES ADDRESSED]

[This case concerns Article 42 CISG and the obligation of the seller to deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware. It also concerns the exception under that Article, pursuant to which the seller will not be so liable if the buyer "knew or could not have been unaware of the right or claim" at the time of the conclusion of the contract.]

I. PARTIES TO THE ACTION AT THE SUPREME COURT

On the appeal brought to the Supreme Court by Appellant [buyer], a limited liability company under French law, with a principal place of business in Saint-Pierre-du-Vauvray, France, to reverse a ruling rendered on 17 February 2000 by the Court of Appeals of Rouen (2nd Civil Court) in favor of Société M. SL, Respondent [seller], with a principal place of business in Alicante, Spain.

The [buyer] invokes one sole reason for reversal of the ruling of the Appellate Court. [Buyer]'s reasons for reversal are annexed to the present ruling.

[]

II. SUPREME COURT COMPOSITION: PARTIES' COUNSEL

The Supreme Court, at the public hearing of 12 February 2002, for which were in attendance: Mr. Lemontey, président and rapporteur, Mr. Renard-Payen and Mr. Durieux, conseillers, Mr. Sainte-Rose, avocat général, Ms. Aydalot, greffier de chambre;

Pursuant to the report given by Mr. Lemontey, président, the observations made by Ch., Esq., avocat for the Appellant, and by SCP T.-R. and B., Esq., avocats for the Respondent, the conclusions made by Mr. Sainte-Rose, avocat général, the Supreme Court deliberated pursuant to the law.

III. SUPREME COURT RULING

On the sole ground of appeal, taken in its two branches, as explained in [buyer]'s Memorandum of Law and annexed to the present ruling:

Whereas the Appellate Court on 17 February 2000 held that

-   [Buyer], in his function as a professional, could not ignore the fact that the purchased shoelaces were counterfeit, and violated a third party's trademark rights;
 
-   [Buyer] had acted with complete knowledge of the trademark rights; and
 
-   Therefore, that [seller] did not have to deliver goods which were "free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware," pursuant to Article 42(2)(a) CISG;

For these reasons, the Supreme Court:

-   Dismisses the appeal;
-   Orders the [buyer] to pay court costs;
-   Pursuant to Section 700 of the new Code of Civil Procedure, rejects the demand made by [seller].

The reasons provided by Ch., Esq., avocat for [buyer] are included in the Supreme Court's reasoning.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Appellant, Société T diffusion of France, is referred to as [buyer]; the Respondent, Société M SL of Spain, is referred to as [seller]. Monetary amounts in the currency of France [French francs] are indicated as [f].

** Catherine Piché is with the Commercial Litigation Section of Weil, Gotshal & Manges (New York office), A graduate of University of Ottawa Faculty of Law (LL.L. 1997), Dalhousie University Faculty of Law (LL.B. 1999), she holds an LL.M in International Commercial Law from New York University School Law (2001). The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.

*** Professeur Claude Witz and Julia Eisengräber are collaborateurs de la Chaire de Droit privé français, Université de la Sarre.

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Pace Law School Institute of International Commercial Law - Last updated August 8, 2005
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