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CISG CASE PRESENTATION

France 24 September 2003 Supreme Court (Aluminum and Light Industries Company v. Saint Bernard Miroiterie Vitretie) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030924f1.html]

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

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Case identification

DATE OF DECISION: 20030924 (24 September 2003)

JURISDICTION: France

TRIBUNAL: Cour de Cassation [Supreme Court]

JUDGE(S): M. Tricot, président

CASE NUMBER/DOCKET NUMBER: 1312 FS-P; 01-16107 D

CASE NAME: Aluminum and Light Industries Company v. Saint Bernard Miroiterie Vitretie, Sté C..., Sté n... (SNEM) et IVB Ch...

CASE HISTORY: 1st instance Tribunal de commerce de Paris 10 May 2000; 2d instance Cour d'appel Paris 14 June 2001

SELLER'S COUNTRY: France (defendant)

BUYER'S COUNTRY: United Arab Emirates (plaintiff)

GOODS INVOLVED: Decorated laminated glass panels


Case abstract

FRANCE: Court of Cassation 24 September 2003

Case law on UNCITRAL texts (CLOUT) abstract no. 494

Reproduced with permission from UNCITRAL

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

The dispute was between a French seller and a company located in the United Arab Emirates. It was the subject of a judgement of the Court of Appeal of Paris on 14 June 2001 (CLOUT case 481).

The buyer had lodged an application for judicial review of that judgement. In the application, the buyer complained that the Court had wrongly imposed on it the burden of proving the cause of the non-conformity of the goods. According to the plaintiff, it was clear from article 36 CISG, under which the seller was liable for any lack of conformity which existed at the time when the risk passed to the buyer, that the burden of proof of the cause of such lack of conformity always rested with the seller. Secondly, the buyer believed that the judgement misinterpreted article 35(2) CISG, inasmuch as the Court had stated that, while the lack of conformity could have resulted from a manufacturing fault, it could also have been due in full or in part to the transport or storage conditions. The Court had not suggested, however, that the transport or storage conditions had been abnormal or that the buyer had failed to take the precautions recommended by the seller.

The Court of Cassation considered that this argument was not well founded. In the first place, no inversion of the burden of proof was involved in the Court of Appeal's finding that, given the conflicting evidence, the faults that were found on the goods in Dubai could not be attributed to the seller. Secondly, the Court of Cassation observed that the Court of Appeal, in noting that the goods had been transported at the buyer's risk by a transporter chosen by the buyer and that no evidence had been brought to show that the packaging of the goods had been defective, had been correct in law.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 35 ; 36 [Also cited: Article 7(2) ]

Classification of issues using UNCITRAL classification code numbers:

35A ; 35B ; 35D [Conformity of goods to contract: quality, quantity and description required by contract; Requirements implied by law; Other issues concerning conformity of goods: burden of proof];

36A2 [Conformity determined as of time when risk passes to buyer: seller responsible when lack of conformity becomes apparent later]

Descriptors: Conformity of goods ; Burden of proof

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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=932&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France website <http://Witz.jura.uni-sb.de/CISG/decisions/240903v.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=932&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 173; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 79 para. 53 (cited in context of burden of proof)

French: [2003] Dalloz, jur. p. 2503, NDLR (note de la rédaction); Claude Witz, Recueil Dalloz, No. 33 / 7218 (22 September 2005) 2282

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Supreme Court (Cour de Cassation) 24 September 2003
Aluminum and Light Industries v. Saint Bernard Miroiterie Vitretie et al.

Translation [*] by Lorraine Jorden [**]

FRENCH REPUBLIC
In the name of the People of France

[...]

According to the complaint filed 14 June 2001 in Paris, Plaintiff [Buyer], Aluminum and Light Industries of the United Arab Emirates, contracted with Defendant [Seller] Saint Bernard Miroiterie Vitretie of France for the completion and packing of laminated glass panels for the dome of an Egyptian hotel. [Buyer] has alleged the non-conformity of certain undertakings. [Buyer] assigned a sub-contractor to resolve the matter and seeks damages from [Seller]. The Court of Appeals rejected this demand.

On appeal, [Buyer] alleges that:

     1. According to Article 36 of the Vienna Convention of 11 April 1980 [CISG:

-   The seller is responsible for any lack of conformity which existed at the time when the risk passes to the buyer, even if the lack of conformity does not appear until later;
 
- In the case of a lack of conformity of the goods, the seller who is presumed responsible, has the burden of proof with respect to the cause of the lack of conformity and, if the existence of a lack of conformity is not contested, the doubt rests on the conformity of the goods ordered and on the conditions in which the goods were packed by the seller;

In deciding nonetheless that it is the Plaintiff [Buyer]'s responsibility to prove that the cause of the lack of conformity of the goods was before the transfer of risk, the Court of Appeals reversed the burden of proof and violated Article 7(2) and Articles 35 and 36 of the CISG

     2. Under Article 35(2) of the CISG, except when the parties have agreed otherwise, the goods do not conform with the contract unless they:

-   are fit for the purposes for which goods of the same description would ordinarily be used;
- are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract; and
- are packed or contained in a proper manner to conserve and protect them.

It results from this that the seller of laminated glass panels delivered in France and destined for use in the hotel dome in Egypt is obligated to deliver the panels packaged so as to withstand damage from humidity and variations in temperature which result normally from sea transport and storing at the destination port or, at the very least, to inform the buyer of particular precautions to take to prevent such damages.

Holding that the non-conformity of the panels could have had as its cause a defect in manufacturing, or it could have had as its exclusive cause transportation or stocking conditions under circumstances in which [Buyer] did not take the precautions recommended by the [Seller], the Court of Appeals ruled against the [Buyer], rendering its decision according to the legal basis recited in Article 35(2) of the CISG.

-   On the one hand, based on the facts submitted, without reversing the burden of proof, the Court of Appeals believed that, with the state of technical elements diverging, it was not impossible to impute to the [Seller] the defects which appeared with the goods in Dubai.
 
- On the other hand, it was brought out that the transport was undertaken at [Buyer]'s risk by a transportation company chosen by it and proof was not provided that the packaging of the goods was defective. The Court of Appeals thus justified its decision in favor of the [Seller].

[Buyer]'s appellate complaint is rejected and [Buyer] is directed to pay to Respondent [Seller] the sum of 1,800 euros, in accordance with article 700 of the new Code of Civil Procedure.

So made and judged by the Court of Cassation, Commercial, Financial and Economic Chamber, and pronounced by the President in his public audience of 24 September 2003.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Defendant-Respondent of France is referred to as [Seller] and Plaintiff-Appellant of United Arab Emirate is referred to as [Buyer].

** Research Assistant of the Institute of International Commercial Law, Lorraine Jorden is a J.D. candidate at the Pace University School of Law.

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Pace Law School Institute of International Commercial Law - Last updated December 1, 2005
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