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CISG CASE PRESENTATION

France 25 October 2005 Supreme Court (Weed killer case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/051025f1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20051025 (25 October 2005)

JURISDICTION: France

TRIBUNAL: Cour de cassation [Supreme Court], First Civil Chamber

JUDGE(S): M. Ancel (Président); M. Pluyett (Conseiller rapporteur); M. Gieidet, Mme Pascal, MM Taÿ, Rivière, Falcone (Conseillers); MM. Trassoudaine, Chauvin, Mmes Chardonnet, Trapero, Ingali-Montagnier, Vassalo, Gorce (Conseillers référendaires)

CASE NUMBER/DOCKET NUMBER: Arrêt no. 1388 FS-P; Pourvoi no. U 99-12.879

CASE NAME: Société D... SARL v. Société S...

CASE HISTORY: 2d instance Cour d'appel Rennes [affirmed]

SELLER'S COUNTRY: Tunisia (defendant)

BUYER'S COUNTRY: France (plaintiff)

GOODS INVOLVED: Weed killer


Case abstract

FRANCE: Cour de cassation 25 October 2005

Case law on UNCITRAL texts [A/CN./SER.C/ABSTRACTS/82],
CLOUT abstract no. 837

Reproduced with permission of UNCITRAL

Abstract prepared by Noora Janahi, Isabelle Laydi, Marine Godefroy and Frank Miranda

This case related to the tacit exclusion of the application of CISG by the parties, in accordance with article 6 of the Convention. The Portuguese company H, manufacturer of weedkiller products, sold its products to the French company F. The latter sold on 80,000 litres of weedkiller to the Tunisian company N, from which, in turn, they were bought by the French company C.

The weedkiller products exhibited a hidden defect attributable to the manufacturer.

The companies N and C sued the companies F and H on the basis of article 1641 et seq. of the French Civil Code.

On 28 January 1999, the Rennes Appeal Court ordered the latter two companies, jointly and separately, to pay sums in varying amounts to the plaintiffs, company H being held to be the guarantor of company F.

Company H contested the ruling on the grounds that, since the case involved an international sale, the Appeal Court should have automatically applied CISG articles 35-40, which related to the conformity of goods sold.

The question to be established was whether the parties had excluded the application of CISG, as they were entitled to do under article 6 of the Convention, and whether they had thereby intended to act in accordance with French domestic sales law.

The Court of Cassation ruled that the parties, which had invoked and discussed without reservation the regime of the guarantee of goods sold, as set out in the French Civil Code, which constituted domestic sales law, had, in so doing, with full knowledge of the international nature of the sale, decided tacitly to exclude the application of CISG. They were enabled to do so by virtue of article 6 of the Convention itself.

The Court of Cassation therefore dismissed the appeal by company H, which had contested the non-application of CISG, and ordered it to pay costs.

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Classification of issues present

APPLICATION OF CISG: No, implicit exclusion of the CISG

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 6

Classification of issues using UNCITRAL classification code numbers:

6A1 [Implied exclusion of Convention]

Descriptors: Choice of law ; Exclusion of Convention

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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=1064&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France database <http://witz.jura.uni-sb.de/CISG/decisions/251005v.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1064&step=FullText>; Légifrance: <http://www.legifrance.gouv.fr>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

French: Revue Lamy Droit civil 2005, No. 22, p. 8, No. 898, obs. Cécile Le Gallou; Revue des contrats, 2006, No. 2, p. 515 et seq., obs. Pascale Deumier; Actualité Juridique (Dalloz 2005), p. 2872, obs. E. Chevrier; Revue critique de droit international privé, 2006, p. 373 et seq., note by Dominique Bureau; Revue trimestrielle de droit commercial, 2006, p. 249, obs. Philippe Delebecque; ibid., p. 468, obs. Bouloc; Revue trimestrielle de droit civil, 2006, p. 268 et seq., obs. Pauline Remy-Corlay; Droit et Patrimoine, Dec. 2006 (private international inheritance law), pp. 74-84, particularly pp. 78-79, obs. Maria-Élodie Ancel; Panorama, Droit uniforme de la vente internationale de marchandises (Dalloz 2007), p. 530, particularly pp. 532 and 539, obs. Claude Witz.

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Supreme Court (Cour de cassation) [25 October 2005]
(Weed killer case)

Case translation [*] by Gurpreet Singh [**]

[...]

FRENCH REPUBLIC
In the name of the People of France

The First Civil Chamber of the Court of Cassation gives the following judgement:

APPEAL REJECTED

The Portuguese company "HP" SA [Manufacturer], whose principle registered office is in (...) Sintra (Portugal), appealed against the decision handed down by the Court of Appeal of Rennes (First Civil Chamber B) on 28 January 1999 in favor of:

   (1)   Company "C" SA [Customer], whose principle registered office is in (...) Montrouge (France),
   (2)   Company "France A" SA [Seller], whose principle registered office is in (...) Fougères (France),
   (3)   "NC company"[Buyer], a Tunisian company whose principle registered office is in (...) La Marsade (Tunisia),

who are Respondents to the appeal.

The Appellant [Manufacturer] in support of its appeal raises six grounds of appeal attached to the present decision. The Court considered the report of the Procureur general. The Court was composed according to Article L131-6-1 of the Judicial Organization Code at the public hearing of 21 September 2005 where the following were present: President: Mr. Ancel; Conseilleur rapporteur: Mr. Pluyette; Conseilleurs: Mr. Guedet, Mrs. Pascal, Messrs. Tay, Rivière, Falcone ; Conseilleurs référendaires: Messrs Trassoudaine, Chauvin, Mmes Chardonnet, Trapero, Ingall-Montagnier, Vasallo, Gorce ; Advocate general: Mr. Sainte-Rose; Court Registrar: Mrs. Collet.

Pursuant to the report of Mr. Pluyette, Conseilleur rapporteur, the remarks of Mrs F..., counsel for the [Manufacturer], of SCP C..., B... and S... counsel for the [Seller], the conclusions of Mr. Sainte-Rose, Advocate general and after deliberations in accordance with the law:

[THE FACTS]

In 1994, the [Seller] sold the [Buyer] 80,000 litres of weed-killer that it had bought from the [Manufacturer]. The [Buyer] in turn resold this product to the [Customer]. Latent defects in the weed killer attributable to the [Manufacturer] became apparent, rendering the product unfit for use. In the contested decision (Rennes, 28 January 1999), pursuant to Article 1641 and the following articles of the Civil Code, the Court ordered the [Seller] and the [Manufacturer] to pay, jointly and severally, damages to the [Customer] and [Buyer], the [Manufacturer] being bound to indemnify the [Seller] against any losses as a result of legal proceedings.

THE FIRST GROUND OF APPEAL

On the first ground of appeal, as it appears in the Claimant [Manufacturer]'s memorandum and is reproduced and attached to this decision:

The decision of the Court of Appeal states that the judges constituting that court were assisted during their deliberations by Mrs. Roucault, the court registrar who signed the decision. As a result, the court registrar helped in the pronouncement of the judgment. The [Manufacturer]'s claims that these actions infringed Articles 451 and 452 of the New Code of Civil Procedure are unfounded.

THE SECOND AND THIRD GROUND OF APPEAL

On the second and third grounds of appeal combined:

The [Manufacturer] challenges the validity of deciding this dispute according to French domestic law whereas the matter involved an international sale. The [Manufacturer] alleged that the Court of Appeal, of its own initiative, should have applied instead Articles 35 to 40 of the Vienna Convention of 11 April 1980.

The Vienna Convention of 11 April 1980 establishes a uniform law of international sale of goods and forms part of French substantive law. In this respect, the judge is bound by the Convention and must apply it except when it is excluded, even implicitly, under Article 6, when the parties put themselves under a particular legal relationship. However, in this case, it follows from the procedure and the contested decision that by invoking and discussing, without any reservation, the warranty of the goods sold as specified by Article 1641 and the subsequent articles of the Civil Code, all of the parties, knowing full well the international nature of the sale, voluntarily placed the resolution of their dispute under French domestic law for domestic sales. The Court of Appeal was therefore not obliged, under the Hague Convention of 15 June 1955 on the law applicable to the international sales of goods together with Article 1(1)(b) of the Vienna Convention, to determine whether Articles 34 to 40 of the Vienna Convention applied in a situation in which Article 6 of the Vienna Convention allows the parties to exclude its application. The grounds of appeal are unfounded.

THE FOURTH, FIFTH AND SIXTH GROUNDS OF APPEAL

On the fourth, fifth and sixth grounds of appeal combined, as they appear in the claimant [Manufacturer]'s memorandum and are reproduced and attached to this decision:

First, the fourth ground of appeal lacks factual basis [Omitted...]

Second, the fifth ground of appeal is new [Omitted...]

Finally, having pointed out that the [Manufacturer] had the capacity as a professional seller, the Court of Appeal based its decision on Article 1645 of the Civil Code so as to order the [Manufacturer] to pay damages in respect of transport costs, repackaging and destruction of the unsold [goods]. The [Manufacturer]'s final claim that this infringed Article 1646 of the said Code lacks factual basis.

FOR THESE REASONS:

The Court rejects the appeal and orders the [Manufacturer] to pay costs. The Court considered Article 700 of the New Code of Civil Procedure and rejects the [Manufacturer]'s claims.

Decision of the Court of Cassation, First Civil Chamber and delivered by its President in its public hearing of 25 October 2005.


FOOTNOTES

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

** Gurpreet Singh [insert bio information]

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Pace Law School Institute of International Commercial Law - Last updated March 19, 2009
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