France 4 October 2005 Supreme Court (Engine parts case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/051004f1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: Arrêt no. 1303 FS-P+B; Pourvoi no. 02-15.981
CASE NAME:
CASE HISTORY: 1st instance [-]; 2d instance Cour d’appel de Lyon 19 November 2000 [affirmed]
SELLER'S COUNTRY: Italy (defendant)
BUYER'S COUNTRY: France (plaintiff)
GOODS INVOLVED: Engine parts
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
40B [Seller's knowledge of non-conformity (seller fails to disclose known non-conformity): seller loses right to rely on articles 38 and 39]
Descriptors:
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/041005v.htm>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
French: Claude Witz, Recueil Dalloz (22 February 2007) 539
Go to Case Table of ContentsCase text (English translation) [second draft]
Queen Mary Case Translation Programme
Court of Cassation, First Civil Chamber [1]
ISEF v. E Corp., R Industry Corp., A France Assurances Corp., MB Corp., Rel. Corp.
4 October 2005
Translation by Lorraine de Germiny [2]
The French Republic in the name of the French people, the Court of Cassation, First Civil Chamber, rendered the following decision.[3]
[...]
Appellant: I...S...E...F (ISEF), an Italian corporation, whose head office is in Carnago, Italy, appeals the 16 November 2000 decision of the Appellate Court of Lyon (Third Civil Chamber) in favor of Respondents.
Respondents: The Respondents include:
| - | E Corp., SA, formerly R Corp., whose head office is in Montfaucon-en-Velay; |
| - | R Industry Corp., SARL, whose head office is in Saint-Etienne; |
| - | A France Assurances Corp., SA, formerly A Assurances Corp., whose head office is in Paris and whose place of business is in Saint-Etienne; |
| - | MB Corp., SA, whose head office is in Marseille; |
| - | Rel. Corp., SARL, whose head office is in Migne-Auxances. |
[...]
On four different occasions between 1988 and 1990, R Industry Corp., which became E Corp. [hereinafter "Buyer"], insured by A Assurances Corp., ordered metallic goods from the Italian corporation ISEF [hereinafter "Seller"] through the intermediary of Rel. Corp. The parties had agreed on the type of metal and upon delivery the manufacturer was to produce an accredited laboratory test report of the metal. Except for the third delivery, the goods were delivered along with the test reports, and no objections were made. In 1992, MB Corp, a customer of [Buyer] that purchased certain parts from [Buyer] [herinafter "Buyer's customer"], discovered defects in the metal, tests were run and [Seller] was notified of the metal's non-conformity in late 1992. [Buyer's customer] requested an expert opinion and on 22 April 1994, the court [4] ordered such an expert opinion. In light of the expert conclusions, [Buyer's customer] brought suit before the commercial court against [Buyer] and its insurer, which impleaded Rel Corp. and [Seller].
1. The Expertise
The [Seller[ claims that the lower court erred in ordering it first to guarantee the debts of [Buyer] and its insurer and second to pay damages to [Buyer].
The Appellate Court had stated that [Seller] was properly brought before the court in April 1994 and that it was properly ordered to be present at the expertise. [Seller] neither appeared, nor did it give any explanation for its absence. The Appellate Court further stated that there does not have to be notice of a decision made en référé ordering an expertise prior to the expertise. The court concluded that [Seller] could be held to the court-ordered expertise, which no party contested or appealed, even though [Seller] was notified of the expertise only after 22 April 1994 (the day the expertise was ordered). [Seller] could be held to the order, because first, [Buyer] and its insurer stated that [Seller] had signed upon receiving the bailiff's 6 April 1994 letter and second, because [Seller] had contested the validity of the expertise only on appeal. Thus, the Appellate Court properly held that the expertise was valid.
2. The [Seller]'s knowledge
The Appellate Court found:
First, that [Seller] had not given [Buyer] the accredited laboratory test report giving the metal composition of the goods delivered; and
Second, that a part of the metals delivered were non-conforming in that they contained an excess of carbon.
Third, it found that this defect was due to a mix of substances at the time of the pouring and casting of the metal.
The Appellate Court held that [Seller], as the manufacturer of the goods, must have been not only aware of this defect, but also that it must have deliberately concealed from the buyer the defect by not delivering the test report showing the composition of the metal. As a result, [Seller] could not argue that the buyer had lost its rights to claim non-conformity of the goods and the Appellate Court properly ruled under Articles 39 and 40 CISG.
3. The application of the CISG
The CISG applies to international sales contracts and governs exclusively the rights and duties of buyers and sellers to such contracts. Because [Buyer's customer] was not a party to the international contract at issue here, any argument arising out of its alleged failure to inspect the goods and to verify the composition of the metal does not apply under Article 38 CISG.
FOR THESE REASONS, THE COURT,
| - | Confirms the Appellate Court's decision; |
| - | Orders [Seller] to pay all costs; |
| - | Dismisses all claims under Article 700 of the New Code of Civil Procedure. |
FOOTNOTES
1. Case number 1303 FS-P+B; Appeal number 02-15.981
2. LL.M. Columbia Law School (2006), Juris Doctor Tulane Law School (2005), Licence Rennes I University, School of Law (2003).
3. The Court, organized pursuant to Article L. 131-6-1 of the Code of Judicial Organization, held a public audience on 5 July 2005 where the following were present:
| - | Mr. Ancel, President |
| - | Chief Clerk of Court, Ms. Pascal |
| - | Counselors Mr. Pluyette, Mr. Gueudet, Mr. Taÿ, Mr. Rivière |
| - | Referendary Counselors Mr. Trassoudaine, Mr. Chauvin. Ms. Trapero, Ms. Ingall-Montagnier, Ms. Vassallo, Ms. Gorce |
| - | General Counsel, Mr. Cavarroc |
| - | Clerk of Court, Ms. Aydalot. |
4. The expertise was ordered by a juge des référés, who is a judge sitting in Chambers to deal with urgent matters.
* All translations should be verified by cross-checking against the original text.
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