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CISG CASE PRESENTATION

France 7 January 2003 Commercial Court Aix-en-Provence (Footwear case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030107f1.html]

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

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Case identification

DATE OF DECISION: 20030107 (7 January 2003)

JURISDICTION: France

TRIBUNAL: Tribunal de commerce [Commercial Court] d’Aix-en-Provence

JUDGE(S): M. Joseph Brissac (president); M. Patrice Caillat, MM. Nathalie Robin (juges); Me. Elisabeth Andre (greffier)

CASE NUMBER/DOCKET NUMBER: 2002 005972

CASE NAME: Unavailable

CASE HISTORY: 2d instance Cour d’appel d’Aix-en-Provence 1 July 2005 [reversing]

SELLER'S COUNTRY: Spain (plaintiff)

BUYER'S COUNTRY: France (defendant)

GOODS INVOLVED: Footwear


Classification of issues present

APPLICATION OF CISG: [-]

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

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France database <http://witz.jura.uni-sb.de/CISG/decisions/070103v.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Commercial Court of Aix-en-Provence

Plaintiff of Spain [Seller] v. Defendant of France [Buyer]

7 January 2003 [2002 005972]

Translation [*] by Andrea Vincze [**]

[...]

[Buyer] refers to documents concerning different deliveries sent to the company by certain clients, which clearly show that the shoes in dispute had defects, i.e., that they fell apart.

[Buyer] specifically refers to deliveries on 24 October 2001, 15 November 2001, 17 December 2001, 21 December 2001 and 3 January 2002. In addition, [Buyer] presented a document from [Seller] dated 28 November 2001, which shows that the said company mentioned that some pairs of shoes in the delivery to [Buyer] were defective.

[Buyer] also referred to a letter from Mr. F.T., the representative of [Seller], dated 21 June 2002, which includes the statement that that some of the goods did not conform to the order.

The Court finds that [Seller] granted two discounts to [Buyer] for the defective goods involved in the present dispute.

All these elements sufficiently show that, contrary to the allegations by [Seller], some of the goods delivered by [Seller] to [Buyer] were not in conformity with the order because they had certain defects, specifically, they fell apart.

[Buyer] returned to [Seller] 1,566 pairs of shoes in the value of EUR 39,995.64. It was therefore established that that [Buyer] returned to [Seller] the non-conforming goods.

It follows that under these circumstances, an accounting must take place between the parties. For being unfounded and inoperative, the Court had already rejected all arguments, claims and conclusions that were outside the scope of or contrary to the principal dispute.

The Court finds that the three invoices for the goods delivered by [Seller] to [Buyer] amount to a total sum of EUR 67,137.86. It can also be found that the two discounts granted by [Seller] to [Buyer], i.e., discounts no. 188 and 189, amount to a total sum of EUR 464.28. It is possible to add to this sum EUR 39,995.64 representing the invoice concerning the goods rightfully returned by [Buyer] to [Seller].

In its complaint dated 15 May 2002, [Seller] filed a lawsuit against [Buyer] requesting the Court to order [Buyer] to pay to [Seller] the sum of EUR 67,137.86 representing the payments due and interest at the statutory rate applicable on the date of filing the lawsuit; a payment of EUR 5,000 pursuant to Art. 700 of the New Code of Civil Procedure; and the costs.

In accordance with Art. 455 of the New Code of Civil Procedure, referring specifically to the statements of the parties in the written submissions and the documents, the Court considered the arguments as follows.

[Seller], in its arguments presented during the oral hearings, requested the Court to rule as follows:

   -    The Court should dismiss all arguments, claims and conclusions of [Buyer];
   -    The Court should order [Buyer] to pay [Seller] the sum of EUR 67,137.89 representing the payments due and an interest at the statutory rate on the date of filing the lawsuit;
   -    EUR 5,000 should be paid pursuant to the New Code of Civil Procedure;
   -    The Court should order the opposing party to pay all other costs.

[Buyer], in its oral submissions, requested the Court to rule as follows. The Court should:

   -    Dismiss all arguments, claims and conclusions of [Seller];
   -    Order [Seller] to take away the goods, and order it to pay a late fee of EUR 150 per day if [Seller] fails to do so within one month after this judgment is made;
   -    Order [Seller] to pay a sum of EUR 10,000 in damages and interest for the commercial damage suffered; and order it to pay a sum of EUR 2,000 pursuant to Art. 700 of the New Code of Civil Procedure;
   -    Order the opposing party to pay all other costs

The Court finds that examination of the facts shows that [Seller] delivered to [Buyer] certain lots of shoes in a value of EUR 67,137.86, with related invoices nos. 146, 149 and 159 dated 6 September, 13 September and 21 September 2001, respectively.

[Seller] states that it is today owed the total payment relating to the goods provided and delivered, whereas [Buyer] argued that some of the goods did not conform to the order.

[Seller] disputes the veracity of this statement by [Buyer], pointing out that the latter did not refer to the non-conformity in its letters of 12 December, 17 December 2001 and 15 January 2002.

Following allowable deductions, the debt [Buyer] owes to [Seller] arising out of the delivery in dispute amounts to EUR 26,977.94, given that in this case the Court cannot allow an extraordinary discount requested by [Buyer] from [Seller] in its letter of 12 December 2001, because it is not proved that the latter had agreed to grant the said discount.

It follows that, considering the discounts and the non-conforming goods returned to [Seller], [Buyer] still owes a sum of EUR 26,997.94 representing the goods delivered and sold by [Buyer].

Therefore, [Buyer] must pay the latter sum to [Seller] along with interest at the statutory rate from 15 May 2002, i.e., the date of filing the suit.

On the other hand, the counterclaim by [Buyer] is rejected in its entirety for being unfounded.

It is also established that [Buyer], that remains to be the debtor of [Seller], must pay a sum that is reduced to EUR 1,000 based on the provisions in Art. 700 of the New Code of Civil Procedure, and it must bear the costs of the proceedings.

FOR THE ABOVE REASONS

After deliberations in accordance with the law and in a contradictory proceeding, the Court ruled on first instance as follows:

   -    For being unfounded and inoperative, the Court rejects all arguments, claims and conclusions that are outside the scope of or contrary to the principal dispute, including the counterclaim of [Buyer]; and
 
   -    Orders the latter to pay to [Seller] the principal amount of EUR 26,977.94 representing the goods provided and delivered to [Buyer] in conformity with the order, along with interest at the statutory rate from 15 May 2002, in addition to a sum of EUR 1,000 pursuant to the provisions of Art. 700 of the New Code of Civil Procedure.
 
   -    The Court orders [Buyer] to pay the costs of the proceedings.

Signed by the President and the Clerk.


FOOTNOTES

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

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Pace Law School Institute of International Commercial Law - Last updated May 1, 2009
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