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CISG CASE PRESENTATION

France 26 October 2004 Appellate Court Poitiers (Technical equipment case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/041026f1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20041026 (26 October 2004)

JURISDICTION: France

TRIBUNAL: Cour d’appel de Poitiers

JUDGE(S): Louis-Marie Cheminade (Président), Marie-Françoise Albert (Conseiller), Ludivine Babin (Greffier)

CASE NUMBER/DOCKET NUMBER: 02/00109

CASE NAME: S.A.R.L. Distribution d’Equipements de l’E... et de L... v. Société F... international SL

CASE HISTORY: 1st instance Tribunal de Commerce de la Roche sur Yon 6 November 2001 [affirmed]

SELLER'S COUNTRY: Spain (plaintiff)

BUYER'S COUNTRY: France (defendant)

GOODS INVOLVED: Technical equipment


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 33 ; 38 ; 39 ; 46 ; 47(1) ; 78 [Also relevant: Article 74 ]

Classification of issues using UNCITRAL classification code numbers:

33D [Time for delivery: although contract contained clause "urgent", court held that delivery two months after receipt of order not a breach of contract];

38A [Buyer's obligation to examine goods];

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];

46A [Buyer's right to require performance: buyer's failure to press for performance held an indication of lack of urgency];

47A [Buyer's right to fix additional period for performance: buyer's failure to do so held an indication of lack of urgency];

78A [Obligation to pay interest].

Descriptors: Delivery ; Examination of goods ; Lack of conformity notice, timeliness ; Specific performance ; Nachfrist ; Interest

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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

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=996&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France website <http://witz.jura.uni-sb.de/CISG/decisions/261004v.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=996&step=FullText>

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

Court of Appeal (Cour d'appel) of Poitiers, 28 October 2004

S.A.R.L. Distribution D'Equipements D'E... et de L... (DEELO)
v.
Socit F... Internacional SL

Translation [*] by Julia Hoffmann [**]

Parties and particulars
Pleadings
Reasoning of the court
A) Applicable law
B) Substantive issues
     1. Delivery delay
     2. Defectiveness of the goods delivered
     3. The abrupt end to commercial relations
C) The ancillary claims
Holding of the court

[...]

PARTIES : APPELLANT: S.A.R.L. Distribution D'Equipements D'E... et de L... (DEELO) "[Buyer]" having its registered office at (...), Ste Hermine, represented by its Manager domiciled at the location of the registered office, represented by SCP G... & A..., Court attorneys, assisted by Matre B..., barrister at the Laval bar, who delivered the closing argument. Following from the Notice of Appeal filed on 4 January 2002 from a judgment dated 6 November 2001, delivered by the Commercial Court of La Roche Sur Yon. RESPONDENT: Socit F... Internacional SL "[Seller]", a Spanish company, having its registered office at (...), Barcelona, appearing by way of its legal representatives, notably its President and Director, both domiciled at the location of the registered office. Represented by SCP M... & M..., Court attorneys, assisted by Matre L..., barrister at the Poitiers bar, who delivered the closing argument.

[...]

PARTICULARS : By judgment dated 6 November 2001, the Court of La Roche Sur Yon dismissed [Buyer]'s claims and condemned it to pay to [Seller] the sum of 6,791,196 pesetas, i.e., 267,734.07 francs or 40,815.80 Euros, with interest at the commercial rate calculated from 4 December 2000, in addition to an indemnity of 762.25 Euros in application of Article 7000 of the New Code of Civil Procedure.

[PLEADINGS]

[Buyer] ... brought an appeal from this decision, by notice to the Court Clerk on 4 January 2002.

In view of the pleadings dated 8 June 2004, [Buyer] requests that the Court vary the judgment delivered and to:

   -    Sentence [Seller] to the payment of 15,244.90 Euros in damages for the loss suffered by [Buyer] for the late delivery and the non-respect of contractual obligations;
   -    Sentence [Seller] to the payment of 45,734.71 Euros for the loss suffered by [Buyer];
   -    Declare that, as a result, the debt alleged by [Seller] will be compensated by the debt claimed in the cross-claim by [Buyer], as a result of the delay in deliveries, and the non-performance claimed in its pleadings and the abrupt cessation of supplies;
   -    Sentence [Seller] to the payment of the sum of 762.25 Euros on the basis of Article 700 of the New Code of Civil Procedure.

In its pleadings dated 26 June 2003, [Seller] requests that the Court:

   -    Affirm the judgment on appeal, except to state that the sentence will provide for the commercial rate to be calculated from 10 August 2000 on the amount of 5,145,256 pesetas, from 10 September on the amount of 652,900 pesetas, and from 10 October 2000 on the amount of 993,040 pesetas;
   -    Order [Buyer] to pay [Seller] the sum of 1,000 Euros for abuse of process in addition to 1,300 Euros for unrecoverable legal costs.

The pre-trial proceedings were closed by order of 2 September 2004.

REASONING OF THE COURT

A) Applicable Law

It is not contested by either party that this dispute is subject to the Vienna Convention of 11 April 1980 on the International Sale of Goods, as it relates to an agreement passed by [Buyer], a French company, with a Spanish Company [Seller], whose establishments are situated in Spain, and relating to a delivery of goods. Therefore, it is in relation to the provisions of that Convention that the situation must be assessed.

B) The Substantive Issues

For the requirements of its business, [Buyer] obtains supplies from [Seller] and it is on this basis that several invoices were issued by [Seller] and submitted to [Buyer]. [Seller] subsequently commenced proceedings and filed the relevant unpaid invoices with the Commercial Court of La Roche Sur Yon on 4 December 2000. [Buyer] invoked the defense of non-performance (delivery delay) by [Seller] and lack of conformity in the goods delivered, as well as unilateral modifications of price, claiming that because of this [Buyer] suffered considerable loss amounting to the amount unpaid on the invoices.

     1. Delivery delay

On the basis of the documents produced, it appears that on 7 and 17 March 2000, [Buyer] placed an order with [Seller] for its usual supply of materials (sand filters, pumps etc. ...), and took care to mark "URGENT" on the orders.

The deliveries were made on 31 May, 2 June, 26 June and 21 July 2000, i.e., between two and four months after the placing of the orders.

[Buyer] never issued the slightest demand for performance, as provided by Article 46(1) of the Convention, nor fixed an additional period of time for delivery (Article 47(1) of the Convention).

If the technical department of the Bressuire Council advised the [Buyer] on 7 July 2000 that commencing the next day, it would be fined by reason of 1/3000 du march, for each calendar day, and if, [Buyer] was fined by the Council 6,475.20 francs on 16 October, 6,475.20 francs as delay penalties, there is no evidence in the court file to show that these penalties were essentially imputable to the delivery delay by [Seller]. The Bressuire project report (exhibit n 16) certainly provides for a supply of filters by [Buyer] on Tuesday, 23 May, but it is not necessarily in relation to the orders in dispute.

It is therefore correct that the trial judge declared that [Buyer] did not stipulate a date for delivery, nor that the deliveries arrived late.

     2. Defectiveness of the goods delivered

The provisions of Article 46 of the Vienna Convention make reference to Articles 38 and 39, which provide that the buyer must examine the goods within as short a period as is practicable in the circumstances, and that the buyer is definitively deprived of its right to avail itself of the alleged lack of conformity where it was not declared, by specifying the nature of the lack of conformity of the goods within a reasonable time, after it discovered it or ought to have discovered it.

The Court notes that [Buyer] remained silent between the date of delivery of the materials that were the object of the four unpaid invoices and the subject of the hearing before the Commercial Court of La Roche Sur Yon, i.e., over thirteen months after the issuing of the last invoice, which is surprising, even if [Buyer] justifies its silence by indicating that "the defects in the goods delivered were not apparent, and were not revealed until after weeks of use."

The trial judge did not fail to observe, from reading the exhibits submitted to him, and which are again presented before the Court, that the filters examined by a bailiff on 2 November 2000 do not correspond with the disputed invoices dated from the month of October 2000 and do not relate to the request for payment of [Seller], but instead relate to a delivery made by the MMC Company, unrelated to this dispute.

Therefore, there is no proof of defectiveness.

     3. The abrupt end to commercial relations

[Buyer] submits to the Court a letter sent by registered mail dated 19 April 1999, providing for a discount rate of 50 to 60 % on certain product lines, but it has not demonstrated that it regularly benefited from discounts on the products in dispute.

The judgment will therefore be upheld, in relation to the [Seller's] primary claim.

C) The ancillary claims

[Seller] makes a claim based on Article 78 of the Vienna Convention that interest is payable from the date of the enforceability of the debt, without it being necessary to give formal notice. [Seller] deduces that it is appropriate to add this to the judgment by specifying that the interest runs from the date of enforceability of each invoice.

However, Article 78 is drafted in a laconic style: "If a party fails to pay the price or ay other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74."

The trial judges, accordingly, rightfully decided to accord the interest to be calculated from the date of summons, i.e., 4 December 2000.

The appeal is a normal prerogative open to parties, that must not be sanctioned except if there exists a manifest abuse or a specific loss, which is not the case here. The claim for damages formulated on this basis by [Seller] will therefore be dismissed.

On the basis of Article 700 of the New Code of Civil Procedure, [Buyer] will be ordered to pay to [Seller] a supplementary indemnity of 1,000 Euros.

[Buyer] will be responsible for the costs of appeal.

FOR THESE REASONS, THE COURT,

Ruling in open court, contradictoirement and as the final court of appeal, after having deliberated in conformity with the law:

   -    Confirms in all its parts the judgment delivered;
   -    Dismisses [Seller]'s claim for damages for abuse of process;
   -    Orders [Buyer] to pay to [Seller] a supplementary indemnity of 1,000 Euros on the basis of Article 700 of the New Code of Civil Procedure;
   -    Orders [Buyer] to pay the costs of appeal;
   -    Authorizes the application of the provisions of Article 699 of the New Code of Civil Procedure.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For the purposes of this translation, Plaintiff-Respondent Socit F... Internacional SL of Spain is referred to as [Seller], Defendant-Appellant S.A.R.L. Distribution D'Equipements D'E... et de L... (DEELO) of France is referred to as [Buyer].

** 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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Pace Law School Institute of International Commercial Law - Last updated February 28, 2005
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