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CISG CASE PRESENTATION

France 11 May 2010 Supreme Court (Ultimate Solution Company contre Union International Oil and Gaz Material Pictures)
[Cite as: http://cisgw3.law.pace.edu/cases/100511f1.html]

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

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Case identification

DATE OF DECISION: 20100511 (11 May 2010)

JURISDICTION: France

TRIBUNAL: Cour de cassation [Supreme Court]

JUDGE(S): Favre

CASE NUMBER/DOCKET NUMBER: 08-21266

CASE NAME: Ultimate Solution Company contre Union International Oil and Gaz Material Pictures

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France

BUYER'S COUNTRY: Jordan

GOODS INVOLVED: Vehicles


UNCITRAL case abstract

FRANCE: Court of Cassation 11 May 2010

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/110],
CLOUT abstract no. 1078

Reproduced with permission of UNCITRAL

Abstract prepared by Claude Witz, National Correspondent and Martin Hlawon

A Jordanian company U sold 60 armoured vehicles to a Swiss company T, with the first five vehicles due to be delivered at Baghdad Airport on 31 December 2004.

Delivery at the time agreed was made a condition of the validity of a rental contract relating to 75 other vehicles. Company U applied to a manufacturer of armoured vehicles, the French company UI, to buy its first five vehicles. It was that contract that was the subject of the present case. On conclusion of the contract, the seller, UI, drew up a pro forma invoice with the words "Total C&F [cost and freight] Baghdad Airport", stating an overall price, made up of an "ex works" price and air transport costs. Company U added to this pro forma invoice the words "We accept your pro forma ex works excluding shipment". Subsequently, company UI ordered an aircraft and requested payment. Having been paid, it transported the five vehicles from its Austrian workshops by land as far as Budapest Airport, where they were to be loaded on to an aircraft headed for Baghdad. Owing to a technical fault, the transporter was unable to make the flight. The deadline for the duty of delivery by company U to company T was imminent, so company UI sought the services of another transporter, which undertook to take the vehicles by road to Istanbul, where they were to be loaded on to an aircraft to Baghdad via Amman. The vehicles never arrived in Baghdad, for reasons unknown.

Company U issued a writ against company UI seeking judgement against it for avoidance of the sale, reimbursement of the costs and damages, invoking CISG. Stating that "the parties did not use the Incoterm cost and freight simply to determine who was responsible for transport costs and organizational costs ... and that in consequence of the failure to ship the goods the transfer of risks to the purchaser could not have taken place", the Lyon Appeals Court had upheld the ruling of the Saint-Etienne Commercial Court, which had declared the sale avoided and had ordered company UI to reimburse the costs. It had also awarded company U part of the sum that it claimed in damages.

The Court of Cassation rejected the appeal of company UI, on the grounds that "the loading on to an aircraft, which constituted the main form of transport, did not take place" and that therefore "the Appeal Court was correct in holding that the failure to load the goods meant that the transfer of risks to the purchaser could not have taken place". The Court of Cassation thus ruled without reference to either CISG or Incoterms.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 45(1) ; 74 ; 81(2) ; 84

Classification of issues using UNCITRAL classification code numbers:

45A [Summary of buyer's remedies for breach by seller];

74 [Damages - General Rules for Measuring];

81D [Restitution by each party of benefits received];

84 [Restitution of Benefits Received]

Descriptors: Restitution ; Damages

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France database <http://www.cisg-france.org/decisions/110510.htm>

Translation (German): Internationales Handelsrecht (IHR) 2011, 107

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated January 19, 2011
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