France 1 July 2005 Appellate Court Aix-en-Provence (Footware case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/050701f1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Arrêt du fond du 01 juillet 2005 no. 2005/377; Rôle no. 03/05302
CASE HISTORY: 1st instance Tribunal de Commerce 7 January 2003 [reversed]
SELLER'S COUNTRY: Spain (plaintiff)
BUYER'S COUNTRY: France (defendant)
GOODS INVOLVED: Footware
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
38A [Buyer's obligation to examine goods: time for examining goods]; 39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]
38A [Buyer's obligation to examine goods: time for examining goods];
39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (French): CISG-France website <http://witz.jura.uni-saarland.de/CISG/decisions/010705v.htm>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
1 July 2005 [2005/377]
Translation [*] by Andrea Vincze [**]
FACTS OF THE CASE
According to three invoices dated 7, 13 and 21 September 2001, representing a total sum of EUR 67,137.86, [Seller], a Spanish company, had sold 2,568 pairs of shoes to [Buyer] of France, which failed to pay.
On 12 December 2001, the [Buyer] wrote to the [Seller]: "We are kindly requesting an extraordinary discount (of EUR 4,681.14) calculated based on all invoices," without further explanation, and on 17 December 2001, [Buyer] wrote the following: "In response to your calls regarding your payments and especially concerning late delivery of the goods which were partly defective (heel, footwear, etc.), we must return the goods.". ...
On 15 May 2003, [Seller] sued [Buyer] for the payment. [Buyer] refused to pay stating that the goods were non-conforming, "the leather was completely defective" and "60% of the shoes" were "non-merchantable".
In its judgment of 7 January 2003, the Commercial Court of Aix-en-Provence had ordered [Buyer] to pay [Seller] the sum of EUR 26,977.94 representing "the goods actually delivered and sold by [Buyer], with interest at the statutory rate applicable on 15 May 2002, as well as EUR 1,000 pursuant to Art. 700 of the New Code of Civil Procedure.
[Seller] appealed against this decision on 10 February 2003.
Based on the conclusions made on 26 April 2005, repeated here in their entirety, [Seller] requests the Court to consider the following:
|-||The Vienna Convention applies;|
|-||The goods were delivered at the end of September 2001;|
|-||[Buyer] gave notice of the non-conformity only on 17 December 2001;|
|-||The notice is late and imprecise;|
|-||[Buyer] has tacitly waived the benefit of non-compliance by requesting a discount;|
|-||[Buyer] sold some of the shoes without having paid for them.|
[Seller] requests the Court to:
|-||Reverse the judgment of the lower court;|
|-||Dismiss the claims of [Buyer];|
|-||Order [Buyer] to pay the sum of EUR 67,137.86 with interest at the statutory rate applicable on the date of filing the lawsuit, as well as EUR 5,000 pursuant to Art. 700 of the New Code of Civil Procedure.|
Based on the arguments made on 19 April 2005, repeated here in their entirety, [Buyer] requests the Court to find that:
|-||During the weeks following delivery of the goods, [Buyer] received customer complaints;|
|-||A thorough examination revealed significant manufacturing defects;|
|-||[Buyer] immediately reported such defects to the French representative of [Seller], and thereafter, directly to [Seller];|
|-||The time period within which [Buyer] acted was reasonable under the terms of the Vienna Convention;|
|-||[Seller] must take back the non-conforming goods at its own expense.|
[Buyer] requests the Court to:
|-||Reverse the judgment appealed;|
|-||Reject the arguments of [Seller]|
|-||Order [Seller] to take back the goods at its own expense, with a late fee of EUR 150 per day [if Seller fails to do so]|
|-||Order [Seller] to pay a sum of EUR 10,000 as damages and interest, and EUR 3,000 pursuant to Art. 700 of the New Code of Civil Procedure|
The final judgment was handed down on 26 April 2005.
REASONING OF THE JUDGMENT
The form of the appeal is appropriate and filing of the appeal was timely, therefore, it is accepted by the Court.
As the case involves an international sale of goods between parties having their places of business in Spain and in France, the contract is governed by the Vienna Convention of 11 April 1980. Under Art. 38(1), the buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances; and under Art. 39(1), the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.
As the goods were delivered late September / early October 2001, and because [Buyer] claims to have immediately discovered that the "leather" was "completely defective" with the result that "60% of the shoes were non-merchantable" (cf. pleadings at the first instance and witness statement by Mr. T.), [Buyer] has nevertheless started to sell the goods. Therefore, [Buyer] lost the right to rely on lack of conformity, which it failed to prove, failed to mention it in its letter of 17 December 2001, and which is not raised as an argument before this Court any longer.
As the customers started to complain on 24 October 2001 that the heels of the shoes fell apart, [Buyer] requested an "extraordinary discount" from the invoices on 12 December 2001, and on 17 December 2001, a month and a half later, complained about late delivery of the goods that were "partly defective (heel, footwear etc.)." There again, [Buyer] lost its right to rely on lack of conformity, which Mr. T. did not mention in his witness statement, and about which [Seller] was informed late.
In addition, when [Buyer] requests rejection of the [Seller]'s claim in its entirety relating to the payment request, [Buyer] fails to state how many pairs of shoes were affected by the lack of conformity and are still in its possession.
[Seller] incurred expenses and it would be unfair to order [Seller] to pay them in full. [Seller] is awarded a sum of EUR 2,000 pursuant to Art. 700 of the New Code of Civil Procedure.
Being the losing party, [Buyer] must bear the costs of the appeal.
For the above reasons, the Court publicly announces, in a contradictory proceeding, in a commercial case, at the last instance that it had received the appeal by [Seller], it amends the judgment appealed, and makes the following new rulings. The Court:
|-||Orders [Buyer] to pay [Seller] the sum of EUR 67,137.86 with interest at the statutory
rate as of 15 May 2002, as well as EUR 2,000 pursuant to Art. 700 of the New Code of Civil Procedure;
|-||Rejects all other claims; and
|-||Orders [Buyer] to pay the costs of the procedure, and rules that the costs of appeal can be directly recovered by SCP B.R. in accordance with Art. 699 of the New Code of Civil Procedure.|
* All translations should be cross-checked against the original text. For purposes of this translation, Plaintiff-Appellant of Spain is referred to as [Seller] and Defendant-Appellee 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.Go to Case Table of Contents