France 30 June 2004 Supreme Court (Société Romay AG v. SARL Behr France) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040630f1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: Y 01-15.964
CASE NAME:
CASE HISTORY: 1st instance Tribunal de grande instance de Colmar 18 December 1997; 2d instance Cour d'appel Colmar 12 June 2001
SELLER'S COUNTRY: Switzerland (plaintiff)
BUYER'S COUNTRY: France (defendant)
GOODS INVOLVED: Air conditioner covers
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
7A3 [Observance of good faith]; 8C [Interpretation in light of surrounding circumstances]; 79B [Impediments excusing party]
Descriptors:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=981&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (French): CISG-France database <http://witz.jura.uni-sb.de/CISG/decisions/300604v.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=981&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
French: Claude Witz, Recueil Dalloz, No. 33 / 7218 (22 September 2005) 2289, 2292
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Société Romay AG v. SARL Behr France
30 June 2004
Y 01-15.964
REPUBLIC OF FRANCE
In the name of the French People
The Cour de Cassation, Première Chambre Civile, delivered the following judgment:
As to the appeal brought by S.A.R.L Behr France "[Buyer]", a limited liability company, with its registered office at (...) Rouffach, France from a judgment delivered on 12 June 2001 by the Court of Appeal of Colmar (First Civil List, section A), in favor of Société Romay AG "[Seller]" with its registered office at (...), Switzerland, respondent on appeal;
The [Buyer] invokes, in support of its appeal, the four grounds annexed to this judgment;
In view of the documents provided to the Procureur général;
COMPOSITION OF THE COURT. The Court was formed, in accordance with article L. 131-6-1 of the Judicial Organization Code, in open court on 2 June 2004, as follows: M. Lemontey, président, M. Pluyette, conseiller rapporteur, MM. Renard-Payen, Gridel, Mme Marais, MM. Tay, Rivière, conseillers, Mme Trassoudaine-Verger, M. Chauvin, Mmes Chardonnet, Trapero, conseillers référendaires, Mme Petit, avocat général, Mme Aydalot, greffier de chambre;
SUBMISSION OF THE PARTIES. On the basis of the report by M. Pluyette, conseiller, the observations by Me Foussard, counsel for [Buyer], of the SCP D., and L., counsel for [Seller], the submissions of Mme Petit, avocat général, and having deliberated in accordance with the law.
PRIOR PROCEEDINGS. According to the decision on appeal (Colmar, 12 June 2001), on 26 April 1991, [Buyer] and [Seller] concluded a collaboration agreement for the supply of air conditioner covers to equip the trucks of the RVI Company. [Buyer] terminated the contract on 6 December 1993. [Seller] commenced proceedings against [Buyer] in the Tribunal de Grande Instance for restitution of the loss that it had suffered as a result of the termination of the contract. The Court of Appeal, overturned the judgment of the lower court and in application of the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG), held that [Buyer] had failed to fulfill its contractual obligations and was to make restitution of the loss suffered in accordance with articles 74 and 77 CISG, without the power to invoke Article 79 CISG.
GROUNDS OF APPEAL
[1 and 2] As to the first and second grounds of appeal, in their two parts, as set out in the Notice of Appeal and annexed to this judgment. The Court of Appeal determined, firstly, that in the disputed contract the parties were identified as "manufacturer" and "buyer", and secondly that in the contract the exact goods to be supplied, the quantities to be delivered, the method of determination of the price, and the means of payment were determined. In interpreting the elements of the evidence that were put before the court with respect to the principles set out in Article 8 CISG, and namely the principle which states that the contracts must be interpreted in good faith, the Court of Appeal was able to deduce that the agreement contained reciprocal obligations to deliver and purchase determined goods, at an agreed price such that it constituted a sale, which was subject to the Vienna Convention of 11 April 1980. Accordingly, without having expressly noted the obligation of [Seller] to transfer the property, the Court of Appeal's decision was made on a legal basis with respect to articles 2, 3, 7, 8 and 30 CISG;
[3] As to the third ground, as set out in the Notice of Appeal and annexed to this judgment. [Buyer] did not, at any stage, in its submissions before the judges at first instance, claim that the agreement concluded between itself and [Seller] was indivisible from the agreements concluded between [Buyer] and Company RVI. The third ground, is new and mixed with issues of fact, and is therefore inadmissible.
[4] As to the fourth ground, in its two parts, as set out in the Notice of Appeal and annexed to this judgment. The Court of Appeal held that [Buyer] justified the price imperatives of Company RVI as making it necessary not for the renegotiation of the price of the air conditioner covers, but the supply of a different item at a significantly lower return. However, it did not establish the unforeseeable nature of this modification of the sale conditions for the goods. As a professional who was familiar with the practices of international trade, it was for [Buyer] to provide contractual mechanisms of guarantee or revision of contract. The Court of Appeal was right to deduce, without contradiction and in seeking to establish such provisions which were claimed to have been omitted, that in the absence of such provisions, it was for [Buyer] to accept the risk of non-performance without being able to benefit from the provisions of Article 79 CISG, therefore providing a legal basis for its decision.
RULING OF THE COURT
For these reasons the Cour de Cassation rejects the appeal, and orders [Buyer] to pay costs. In view of Article 700 of the New Code of Civil Procedure, the Cour de Cassation rejects [Buyer]'s claim and orders it to pay [Seller] the sum of 2.300 Euros.
Thus determined and ordered by the Cour de Cassation, Première chambre civile, and delivered on 30 June 2004.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Defendant-Appellant Behr France of France is referred to as [Buyer], Plaintiff-Appellee Romay AG of Switzerland is referred to as [Seller].
** Julia Hoffmann, BA, Dip. Lang, LLB (Hons) (Adel.). LLM (Paris I), Solicitor of the Supreme Courts of New South Wales and South Australia.
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