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CISG CASE PRESENTATION

France 22 March 2011 Supreme Court (Société Galperti Tech et a. contre Société RKS)
[Cite as: http://cisgw3.law.pace.edu/cases/110322f1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20110322 (22 March 2011)

JURISDICTION: France

TRIBUNAL: Cour de cassation [Supreme Court]

JUDGE(S): Favre

CASE NUMBER/DOCKET NUMBER: 10-16993

CASE NAME: Société Galperti Tech et a. contre Société RKS

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France

BUYER'S COUNTRY: Italy

GOODS INVOLVED: Commodities


UNCITRAL case abstract

FRANCE: Court of Cassation 22 March 2011

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/110],
CLOUT abstract no. 1077

Reproduced with permission of UNCITRAL

The company RKS, based in France, concluded a contract with the company Officine Nicola Galperti e Figlio SpA to supply raw materials and a subcontract with the company Galperti Tech, both based in Italy.

Owing to a number of defects, RKS issued a writ against Galperti Tech before the Auxerre Commercial Court for termination of contract, payment of indemnity and warranty against demands that might be made by Officine Nicola Galperti.

The two Italian companies, however, argued that the Commercial Court did not have jurisdiction to hear the case, on the grounds that the sellers were not required to deliver the goods, given the use of the International Commercial term (Incoterm) "ex works" on the delivery order. Under Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (hereinafter Brussels 1 Regulation), article 5, paragraph 1 (b), therefore, the competent courts should be those in the place where the Italian companies were based, given that the goods had to be collected rather than delivered, and not those of the headquarters of the French company. The Italian companies therefore argued that the Auxerre Commercial Court did not have jurisdiction to try the case.

The court of appeal had held that the Auxerre Commercial Court had jurisdiction to hear the case, on the grounds that the vendor had a duty of delivery distinct from that of making the goods available. The fact that the delivery order contained a reference not only to "ex works" but also to "delivery address" meant that the parties had intended to override the duty of delivery whereby the vendor was required simply to place the goods at the disposal of the buyer. The court of appeal had therefore concluded, on the basis of the reference to a delivery order, that the vendors had a duty of delivery in France.

Galperti Tech and Officine Nicola Galperti e Figlio applied for judicial review. The Court of Cassation made no reference either to the United Nations Convention on Contracts for the International Sale of Goods or to the Incoterm "ex works" and merely noted that, according to the appeal judgement, the place of delivery of the goods under article 5, paragraph 1 (b), of the Brussels 1 Regulation was clear from a special provision of the sales contract between the parties, which specified the place of delivery as Avallon. It thus followed that the Auxerre Commercial Court was competent under article 5, paragraph 1 (b), of the Regulation. The Court of Cassation rejected the application against the judgement of the Paris Court of Appeal, which had rightly acknowledged the competence of the Auxerre Commercial Court.

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Classification of issues present

APPLICATION OF CISG: No

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 1(1)(b) ; 9 ; 19

Classification of issues using UNCITRAL classification code numbers:

1B11 ; 1B21 [Private international law points to Contracting State ; Applicability of private international law of forum]

Descriptors: Applicability ; Application 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

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France database <http://www.cisg-france.org/decisions/220311.htm>

Translation: Unavailable

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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