France 27 September 2007 Cour d'appel [Appellate Court] Amiens (Sociétés Mobacc SARL et Sam 7 v. Société Novodec / Sociéte Sigmakaloné) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070927f1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Arrêt no. 381; RG 98/00063
CASE HISTORY: 1st instance Tribunal de commerce d'Amiens 3 November 1997; 3d instance Cour de cassation 3 February 2009
SELLER'S COUNTRY: Netherlands (defendant)
BUYER'S COUNTRY: France (plaintiff)
GOODS INVOLVED: Aerosol paints
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
39B [Requirement to notify seller of lack of conformity: cut-off period of two years]
39B [Requirement to notify seller of lack of conformity: cut-off period of two years]
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=1459&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (French): CISG-France database <http://witz.jura.uni-sb.de/CISG/decisions/100905.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1459&step=FullText>
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
27 September 2007 [RG 98/00063]
Translation [*] by Nathalie Hofmann [**]
Appeal of Judgment of the Tribunal de commerce [Commercial Court] of Amiens of 7 November 1997
|2.||The First Instance Judgment|
|3.||The Evidence and Submissions Considered by the Court of Appeal|
|a. Submissions of seller and seller's commercial agent|
|b. Submission of buyer's successor|
|4.||Ruling of the Court of Appeal|
|a. On the application of the CISG|
|b. On the preclusion period in Art. 39 CISG|
|c. On buyer's claims|
|d. On the discharge of seller's commercial agent from the case|
|e. On the costs|
The Defendant of the Netherlands ["Seller"], trades aerosol paints and operates on the French market through an intermediary commercial agent ["Seller's commercial agent"].
In 1990, Plaintiff of France ["Buyer"], now ["Buyer's successor"], manufacturer of paint and varnish, became a customer of [Seller] in order to furnish the shops CONTINENT and AUCHAN, supplementing its own products. [Buyer] stipulated non-breakable sealing caps.
In October 1991, [Seller] changed its supplier of sealing caps in order to guarantee their non-breakability.
From February 1994 onwards, difficulties arose with regards to [Buyer] no longer paying the bills and complaining about the non-breakability of the sealing caps and [Seller] supposing that the agreements on the order volume have not been respected. This led to the breaking off of commercial relations in October 1994.
[Buyer], supplier of the company CONTINENT, sued [Seller] and [Seller's commercial agent] in March 1995 before the Commercial Court of Amiens.
[2. THE FIRST INSTANCE JUDGMENT OF THE COMMERCIAL COURT OF AMIENS]
In the judgment of 7 November 1997, [Seller's commercial agent] was released from the case, whereas [Seller] was ordered to pay [Buyer] the amount of 2,324,000 French francs (357,035.56 €) with interest at the legal rate running from the commencement of action on 16 March 1995 and the amount of 10,000 French francs on the basis of Art. 700 New Code of Civil Procedure.
[Buyer] was ordered to pay [Seller] the amount of 130,242.75 Dutch guilders (51,101.56 €) in the aforementioned currency, by covered checks or the equivalent in French francs at the rate of the date of payment with interest at the legal rate running from 21 February 1995, which is the date of default. The court declared the set-off and provisional enforceability of the ordered sums up to the amounts that compensate each other.
[3. THE EVIDENCE AND SUBMISSIONS CONSIDERED BY THE COURT OF APPEAL]
[Seller] filed an appeal on 28 November 1997.
By order rendered on 14 November 2000, the procedural judge  designated Mr. DERIQUEHEM as expert. The corresponding deposit had to be filed by [Seller].
By order rendered on 15 May 2001, the procedural judge extended the expert mandate with regards to subjects of financial nature concerning the determination of the damage and designated Mr. TUBIANA as co-expert. The corresponding deposit had to be filed by [Seller] and the subject of the expert's report was broadened to include [Seller's commercial agent].
By order rendered on 16 December 2003, the procedural judge requested the experts to complete their work by commenting on the submissions of the parties, irrespective of the answers already given in the reports, and Mr. DERIQUEHEM to specify, with regards to the applicable regulations detailed in [Buyer]'s submission No. 1, whether the non-breakability of the sealing caps in dispute was in conformity with the requirements for that type of product.
By order rendered on 26 October 2004, the procedural judge designated Mr. VERGER as replacement for the deceased Mr. DERIQUEHEM with regards to the mandate described in the order of 16 December 2003. The corresponding deposit had to be filed by [Buyer's successor].
By order rendered on 6 October 2005, the procedural judge designated Mr. KLENIEWSKI as replacement for Mr. Verger.
By order rendered on 3 April 2007, the procedural judge rejected the request of [Buyer's successor] to delete the case from the roll.
On 20 July 2006, the expert report was provided to the clerk of the Economic Chamber.
[a. Submissions of Seller and Seller's commercial agent]
In their final submissions of 27 November 2006, [Seller] and [Seller's commercial agent], the latter, summoned in provoked appeal, requested the Court of Appeal:
|-||on the main motion, to declare the claim of [Buyer's successor] against [Seller] time-barred in application of Art. 39 CISG,
|-||subsidiarily, to acknowledge the report of Mr. DERIQUEHEM and hence to declare ill-founded and reject all claims of [Buyer's successor],
|-||very subsidiarily, for the improbable case that the Court held that [Seller] was in principle responsible for any damage, to acknowledge the expert report of Mr. TUBIANA and to determine the damage of [Buyer's successor] to amount to 61,000 €,|
[b. Submissions of Buyer's successor]
In its submissions of 11 April 2007, [Buyer's successor] requested the Court of Appeal:
The pre-trial stage was closed by order  of 3 May 2007.
[4. RULING OF THE COURT OF APPEAL]
a) On the application of the CISG
The parties' relations were not covered by a formal contract but by simple correspondence and there was no scope statement establishing the obligations of each party: Even though [Buyer] contracted with [Seller], a Dutch company, through the intermediary [Seller's commercial agent], a French company mandated by [Seller], on French territory, [Seller] and [Buyer] have had direct contact right from the beginning (meeting on 17 October 1991, letter of 26 November 1991 from [Buyer] to [Seller] confirming the agreement found, fax concerning [Seller]'s request for payment to [Buyer] of 13 February 1992, faxes dated 2 February, 3 February and 13 April 1994 from [Seller] to [Buyer], letter concerning unpaid bills of 22 April 1993), there was direct billing and mailing between [Seller] and [Buyer] (bills of 21 February 1994 and 28 September 1994), and payments; a contractual relationship was thereby constituted between [Seller] and [Buyer]. [Buyer] essentially alleges late delivery by [Seller] in 1994 and, primarily, non-conformity with regards to the non-breakability of the sealing caps, hence this concerns breach of contract. The CISG applies to international sales contracts except for sales to the final consumer; it governs the rights and obligations of the seller and the buyer unless there is an express provision excluding the convention's application. The CISG was ratified by France on 6 August 1982, where it entered into force on 1 January 1988, and by the Netherlands on 13 December 1990, where it entered into force on 1 January 1992. The CISG is thus applicable to this dispute.
b) On the preclusion period in Art. 39 CISG
Art. 39 CISG provides:
"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. In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee."
The sales took place over several years. Since the preclusion period begins with the delivery, it starts to run with each delivery in a case of successive contracts of sale. The first reclamation with regards to the sealing caps, for which it is not contestable that their non-breakability has been stipulated in the contract of 26 November 1991, is dated 19 January 1994, concerns the supermarket CONTINENT and mentions two sealing systems: "non-breakable" and "screw top". On 29 June 1994, [Buyer] returned the products with sealing caps of the first generation to [Seller]; in this regard it is of little importance that [Buyer] accepted the exchange of the sealing caps since [Buyer] had asked for that exchange and since the sealing caps of the second generation respected the contractual requirement of non-breakability according to several experts. Although [Buyer] had ceased to order from [Seller] in October 1994, [Buyer] did not sue [Seller] before March 1995, after the end of the commercial relations between CONTINENT and [Buyer] in January 1995. CONTINENT's letter concerning the commercial break up mentions delivery failures and deteriorations in quality; however, it is impossible to deduce whether these are imputable to [Seller] or to [Buyer], who also furnished its own paints.
The time limit in Art. 39 CISG is a strict preclusion period; therefore those deliveries that took place more than two years before the commencement of action cannot be contested anymore. The non-conformity claim with regards to the non-breakability of the caps of the paints only concerns the sealing caps of the first generation, meaning those that are not color-imbued. Moreover, according to the expert report of Mr. KLENIEWSKI these were delivered before February 1992 while [Buyer] commenced the action in March 1995. According to Mr. DERIQUEHEM's expert report, all loads supplied after 1991 satisfactorily met the requirement of non-breakability. Referring to the product return on 29 June 1994 the expert KLENIEWSKI indicated that "two and a half years after the last deliveries of paints with sealing caps of the first generation, [Buyer] asked [Seller] to replace the old caps by new caps" ... "obviously, [Buyer] wanted to get rid of its old unsold stock by getting reimbursed or by having the old stock rejuvenated". Consequently, [Buyer]'s claims are precluded; this is not inconsistent with any contractual period of guarantee.
c) On [Buyer]'s claims
[Buyer]'s other pleas which are based on the rules regarding labeling, packaging and containment have only been brought up before this court and the documents provided do not prove any shortcoming on behalf of [Seller], even less any dissimulation of the alleged defects. [Buyer] refers to European and French regulations in order to infer therefrom that [Seller] did not meet its obligations. [Buyer], when importing the goods in dispute before reselling them to the supermarket groups CONTINENT and AUCHAN, had to make sure that they are conforming to the regulation applicable in France which does not impose non-breakability but simply solid and firm packaging. Mr. DERIQUEHEM observed that [Buyer] neither provided any element of evidence for its claims, nor did [Buyer] undertake any examination of the products sent by [Seller] before delivering them to the supermarkets. Mr. KLENIEWSKI said to be surprised that the former expert of [Buyer] only conserved three of the paints in dispute, that the alleged difficulties could not be established by a bailiff  or an expert and that there was no reclamation by the group AUCHAN. Concerning the late deliveries the evidence produced is not significant: except for a few punctuality problems mentioned, [Buyer]'s letters from 1 February to 5 Aprils 1994 are contradictory and refer to a period of time when [Buyer] did not pay the bills anymore (February 1994), had returned several year old products (June 1994) and had stopped ordering (October 1994). Hence, the order volume originally agreed by the parties had not been respected by [Buyer].
Furthermore, Mr. TUBIANA, expert, found out that the revenue produced through [Seller]'s products represented less than 1% of the revenue generated by [Buyer] through its business with the group CONTINENT between 1991 and 1994, in that regard the portion of [Seller]'s products was insignificant. Given that the circumstances of [Buyer]'s removal from CONTINENT's list of supplier are not clearly established by the evidence produced, [Buyer]'s claim is rejected. Moreover, this non-conformity claim is delayed because of the notion of reasonable time and the preclusion already evoked.
d) On the discharge of [Seller's commercial agent] from the case
It is not contested that [Seller's commercial agent] represents [Seller] in France and acts in the name and for the account of [Seller]. While commercial relations were initiated between [Seller] and [Buyer] through the intermediary [Seller's commercial agent], the parties had direct relations at the order level, the payment level and through letters exchanged. [Seller's commercial agent] has not committed any personal fault. In any case, the discharge of [Seller's commercial agent] cannot be objected to because of the preclusion.
[e) On the costs]
As losing party, [Buyer's successor] has to bear the entire costs and expenses of the first instance and the appeal, which notably include the expert fees. Moreover, it is inequitable to leave the unrecoverable fees  at [Seller]'s charge, hence, [Buyer's successor] is ordered to pay [Seller] the amount of 5,000 € based on Art. 700 New Code of Civil Procedure.
ON THESE GROUNDS
The Court of Appeal, deliberating publicly and after oral hearing, allows the appeal.
Overturns the judgment with regards to the claims of [Buyer], now [Buyer's successor], and rules anew thereon:
|-||Declares that the claim of [Buyer's successor] against [Seller] is precluded by applying Art. 39 CISG;
|-||Finds that [Seller's commercial agent] is discharged without objection;
|-||Rejects all other claims; and
|-||Confirms the judgment in all other respects.
|-||Orders [Buyer's successor] to bear the costs and expenses of the first instance and the
appeal, including the expert fees, with the right of direct collection for the benefit of SCP
MILLON PLATEAU, attorneys, in conformity with Art. 699 New Code of Civil
|-||Orders [Buyer's successor] to pay [Seller] the amount of 5,000 € on the basis of Art. 700 New Code of Civil Procedure.|
|The Clerk||The President|
* All translations should be verified by cross-checking against the original text.
** Nathalie Hofmann is a law student at Humboldt University Berlin. She studied at the University of Geneva during the academic year 2007-2008 and obtained the "Certificat du droit transnational". She participated in the 15th Willem C. Vis International Commercial Arbitration Moot as a member of the Geneva team. In 2008, she won the Clive M Schmitthoff Essay Competition.
Translator's explanation of terms:
1. French term: "Conseiller de mise en état" = magistrate at the Court of Appeal responsible for the procedure at a pre-trial, instruction phase.
2. "in solidum": Latin term, similar to "joint and several liability"; i.e., there are several debtors, whereas each, at the creditor's choice, is liable to full payment or performance.
3. French term: "ordonnance de clôture" = order by the procedural judge that closes the phase of instruction of a case.
4. French term: "huissier" = member of the legal profession whose responsibilities include formally bearing witness to events or situations, but who is also responsible for seizures, debt collections, etc.
5. French term: "frais irrépetibles" = legal fees ordinarily not recoverable by the winning party, for example attorney fees. The French judge has discretion to order the losing party to pay a certain amount to cover such fees according to Art. 700 New Code of Civil Procedure.Go to Case Table of Contents