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CISG CASE PRESENTATION

France 28 November 2002 Appellate Court Versailles (SARL T... Diff v. Sté E...)
[Cite as: http://cisgw3.law.pace.edu/cases/021128f1.html]

Primary source(s) of information for case presentation: CISG-France website

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Case identification

DATE OF DECISION: 20021128 (28 November 2002)

JURISDICTION: France

TRIBUNAL: CA Versailles [CA = Cour d'appel = Appellate Court]

JUDGE(S): Françoise Laporte (président); Jean-François Fedou, Denis Coupin (conseillers); Marie-Thérèse Genissel (greffier)

CASE NUMBER/DOCKET NUMBER: 01/07272

CASE NAME: SARL B... C... v. SARL T... Diff et Sté E ...

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (defendant)

BUYER'S COUNTRY: France (plaintiff)

GOODS INVOLVED: Shaggy material


Case abstract

FRANCE: Court of Appeal of Grenoble 28 November 2002

Case law on UNCITRAL texts (CLOUT) abstract no. 495

Reproduced with permission from UNCITRAL

Abstract prepared by Claude Witz, National Correspondent,
with the assistance of W.-Thomas Schneider

This case, which was between a seller of machines manufactured by a third company, both domiciled in Cuba, and a French buyer, concerned a claim for payment and damages.

The case dated back to the end of 1997. On receipt of an order, the seller supplied the buyer with a quantity of machines, the price of which was never subsequently paid. During 1998, the buyer sent the seller a number of letters acknowledging the debt and citing temporary cash-flow problems as the reason for the delay in payment. In a fax dated 16 October 1998, the machine manufacturer sent the buyer a detailed breakdown of the debt, which amounted to US $48,257.26. However, in a document entitled an act of conciliation, the manufacturer expressed its willingness to reduce the debt to US $44,909.46. The act of conciliation was reiterated in a document dated 9 November 1999. At the end of 1998, the buyer put in a new order, but the seller refused to supply any goods until the existing debt had been paid in full.

On 26 January 2001, in what was stated to be an adversary judgement, the Commercial Court of Grenoble, in a case brought by the seller, ordered the buyer to pay the sum of US $58,238.57. The Court of Appeal of Grenoble, in a case brought by the buyer, dismissed the appeal in part and upheld the first instance order to pay US $44,909.46.

On the merits of the case, the Court began by noting that, under article 4, paragraph 1, of the Convention on the Law Applicable to Contractual Obligations (Rome, 19 June 1980), an international contract was, unless the parties chose otherwise, governed by the law of the country with which it was most closely connected and that that country was presumed to be that where the party who was to effect the performance which was characteristic of the contract had its habitual residence or, in the case of a body corporate, its central administration. The Court therefore concluded that Cuban law should apply. The Court then noted that, since the Republic of Cuba had, like France, signed and ratified CISG of 11 April 1980, CISG applied to the current case. The Court held that it was immaterial that the contracts produced in court did not contain the signature of the buyer's representative, since CISG made no formal requirement with regard to either the validity or the proof of a sales contract.

The Court then upheld the first instance order, on the grounds that the buyer was obliged to pay for the goods under the contract between itself and the seller.

The Court thus dismissed the buyer's plea of breach of contract with regard to the order made at the end of 1998, on the grounds that the seller was entitled, at that time, to refuse to supply further goods until the buyer had honoured the commitments arising out of the previous order. However, the Court reduced the amount payable under the first instance order, on the basis of the reduction offered by the manufacturer in its act of conciliation dated 11 November 1998 and 9 November 1999.

In conformity with article 78 CISG, the Court awarded the seller interest on the total sum due. In the absence of a special provision, it held that the legal interest rate in Cuba, as reported by the seller, should apply, but only for the period from 1998 to 2000. Since no information had been provided by the seller on the legal rate in Cuba for 2001 and 2002, the Court applied the legal interest rate obtaining in France during that period.

Lastly, the Court dismissed the additional claim for damages, based on article 74 CISG, on the grounds that the seller had not provided evidence of damage over and above the delay in payment.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 31 ; 78

Classification of issues using UNCITRAL classification code numbers:

31A [Delivery of the goods: contracts involving carriage of goods];

78B [Rate of interest]

Descriptors: Delivery ; Jurisdiction ; Interest

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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=830&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France website <http://Witz.jura.uni-sb.de/CISG/decisions/281102v.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=830&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated June 15, 2005
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