France 2 December 1997 Supreme Court (Mode jeune diffusion v. Maglificio) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/971202f1.html]
DATE OF DECISIONS:
JURISDICTION:
TRIBUNAL:
JUDGES(S):
CASE NUMBER/DOCKET NUMBER: 95-20.809
CASE NAME:
CASE HISTORY: 1st instance Tribunal com. Roubaix-Tourcoing; 2nd instance Cour d'appel de Douai 14 September 1995 [affirmed]
SELLER'S COUNTRY: Italy (defendant)
BUYER'S COUNTRY: France (plaintiff)
GOODS INVOLVED: Textiles
FRANCE: Court of Cassation 2 December 1997
Case Law on UNCITRAL texts (CLOUT) abstract no. 207
Reproduced with permission from UNCITRAL
The seller, a company with its place of business in Italy, delivered goods to a French buyer in 1992. The buyer's order form contained a jurisdiction clause in favour of the Commercial Court of Roubaix-Tourcoing in France. However, the invoices sent by the Italian [seller] to the French [buyer] referred to the jurisdiction of the Commercial Court of Prato in Italy.
Considering the goods to be defective, the French buyer sued the Italian [seller] before the Commercial Court of Roubaix-Tourcoing. The Italian seller raised an objection that the Italian, not the French, court had jurisdiction. When the Court allowed the objection to jurisdiction, the French buyer lodged an appeal.
The Court of Appeal of Douaí then determined jurisdiction according to the place of performance of the seller's obligation to deliver as the obligation on which the claim was based within the meaning of article 5(1) of the Brussels Convention. The Court considered that, the sale being governed by CISG, the place of delivery was in Italy, this being the place where the goods were handed over to the first transporter for delivery to the buyer, in conformity with article 31 CISG.
The French seller brought an appeal against this ruling. The Court of Cassation rejected the appeal on the ground that it considered that the Court of Appeal had justified its decision from the legal point of view by finding that the place of performance of the seller's obligation to deliver was in Italy, the place where the goods were handed over to the buyer, this place being further indicated by correct application of article 31 CISG.
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:
Descriptors:
CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=277&step=Abstract>; [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 9
French: Juris-Classeur Périodique-E (1998) No. 5, 151 = Juris-Classeur Périodique - La Semaine Juridique, IV.1122 [155]; [1998] Recueil Dalloz Sirey, I.R. 20
CITATIONS TO TEXT OF DECISION
Original language (French): CISG - France website ("http://Witz.jura.uni-sb.de/CISG/decisions/021297v.htm"); [1997] Bulletin des arrêts de la Cour de Cassation, I, No. 341 [232-233]; Juris-Data No. 004831; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=277&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: Perales, Battle of the Forms and Burden of Proof, 6:2 Vindobona Journal (2002) 217-228, n. 10; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.538; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 30; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 31 para. 92
French: Huet, [1999] Journal du Droit International 185-188
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
Public hearing of 2 December 1997
REPUBLIC OF FRANCE
The Supreme Court of Appeals, First Civil Chamber, has rendered the following decision:
PARTIES. On the appeal brought by the Mode Jeune Diffusion company, [buyer], a private company whose
principal office is in Zone industrielle de la Pilaterie, rue de la Ladrie, 59290 Wasquehal (France), seeking
reversal of a ruling rendered on 14 September 1995 by the Appellate Court of Douai (2d Chamber), in favor of: 1)
the company known collectively as (SNC) Maglificio il Falco di Tiziana Goti e Fabio Goti, [seller], whose
principal office is in Via Traversa del Crocifisso 53, 50047 Prato (Italy), 2) Mr. Fabio Goti, 3) Mrs. Fabio Goti,
both residing at Via Traversa del Crocifisso 53, 50047 Prato (Italy), defendants in the appeal.
The [buyer] invokes in support of its appeal the sole grounds of appeal annexed to the present ruling.
HEARING: COMPOSITION OF COURT: COUNSEL. The Supreme Court, at the public hearing on 28 October
1997, where were present: Mr. Lemontey, président, Mr. Ancel, conseiller rapporteur, MM. Grégoire, Renard-Payen, Chartier, Durieux, Mme Bénas, MM. Guérin, Sempère, Bargue, Judges, Mr. Savatier, Mrs. Bignon, chief
clerks of the court, Mr. Sainte-Rose, assistant public prosecutor, Mrs. Aydalot, chamber clerk; On Mr. Justice
Ancel's report, the arguments of SCP Boré et Xavier, attorneys for Mode Jeune Diffusion, [and those] of Maître
Capron, attorney for Maglificio il Falco di Tiziano Goti e Fabio Goti and Mr. and Mrs. Goti, the briefs of Mr.
Sainte-Rose, assistant public prosecutor, and after having deliberated upon them pursuant to the law;
I. SUPREME COURT'S REASONING
On the sole grounds of appeal, taken in its two branches:
Whereas the [buyer] complains against the challenged ruling (Appellate Court of Douai 14 September 1995) for
having denied French jurisdiction over the claim brought against the [seller] following deliveries made by
[seller], in 1992, of products considered defective; the Appellate Court decision is challenged [by buyer], on the
one hand, for not having responded to the [buyer]'s briefs maintaining that by accepting the order, the [seller]
had agreed to the forum selection clause naming the Commercial Court of Roubaix-Tourcoing (France) stipulated
on the order form, and on the other hand, for having misunderstood the Brussels Convention of 27 September
1968 [EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
(Brussels 1968)] and the Vienna Convention of 11 April 1980 [CISG], from which it results that the place of
performance of the seller's obligation of delivery, serving as basis for the claim, was situated in France;
But whereas, on the one hand, the Appellate Court, after having remarked that the [seller], in its invoices
addressed to its co-contracting party, for its part, made reference to the jurisdiction of the Commercial Court of
Prato (Italy), has responded to the briefs relied upon by [buyer], by expressly maintaining that the [seller] did not
"confirm" the unilateral stipulation to jurisdiction made by [buyer];
Whereas, on the other hand, the Appellate Court has legally justified its decision remarking that the place of
performance of the seller's obligation of delivery, serving as basis of the claim within the meaning of Article 5(1)
of the Brussels Convention, was situated in Italy, the place of the handing of the goods over to the first carrier for
carriage to the buyer, that place also being determined by a proper application of Article 31 CISG.
II. SUPREME COURT'S RULING
For these reasons, the Supreme Court:
Supreme Court (Cour de Cassation) 2 December 1997
Dismissal of the Appeal
M. Lemontey, président
Ruling no. 1852 P
Appeal no. F 95-20, 809
In the name of the French People
| - | Rejects the [buyer]'s appeal; |
| - | Orders [buyer] to pay the costs; |
| - | In light of Article 700 of the New Code of Civil Procedure, rejects the [seller]'s claim; |
Thus done and decided by the Supreme Court, First Civil Chamber, and announced by the président at the public hearing of 2 December 1997.
Brief by SCP Boré et Xavier, attorneys for [buyer].
Brief annexed to Ruling no. 1852 (CIV 1).
III. SELLER'S GROUNDS OF APPEAL
Complaint is made against the challenged ruling [of the Appellate Court] for having allowed an objection [by seller] based on lack of French jurisdiction;
For the reasons that "the parties agree to declare applicable between them the Brussels Convention signed by the two countries, these Conventions govern the court's jurisdiction and the enforcement of decisions in civil and commercial matters; that Article 2 of the Brussels Convention provides the principle according to which 'Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State'; with respect to that principle, this Convention has provided for special jurisdictions (Art. 5) and a possibility of contractual derogation from jurisdiction (Art. 17);
That [buyer] invokes in the first place the existence of such a contractual derogation permitting an override to the general principle; that nevertheless, the cited article provides that such a forum selection agreement must be concluded in writing or must be made orally with written confirmation, must be within international trade in a form which accords with a usage in the particular field and of which the parties knew or ought to have known; that on this point, it is with good reason that the first instance judges refused to recognize the existence of such an agreement from the reference made unilaterally by [buyer] to the exclusive jurisdiction of the Commercial Court of Roubaix-Tourcoing and even though in its invoices addressed to [buyer], the [seller], far from confirming that provision, made for its own part express reference to the exclusive jurisdiction of the Commercial Court of Prato;
That these contradictory terms demonstrate that there was no will of the parties to choose a sole jurisdiction and to thus contractually derogate from jurisdiction as Article 17 [of the Brussels Convention] allows;
Now it is proper to seek a criterion of jurisdiction in light of Article 5(1) of the Brussels Convention which provides for special jurisdiction; that this Article provides that a defendant domiciled in the territory of a Contracting State may be sued in another Contracting State, in matters relating to a contract, in the courts of the place of performance of the obligation in question; that that obligation in the case at bar is an obligation to deliver (related to an action concerning defects in the goods); that it is nevertheless proper to determine the place of the delivery of the goods, depending upon the obligation of delivery; [...]
That in the absence of contractual agreement on the place of delivery, it is proper to refer to the rules conflicts of law of the seized jurisdiction (that is, France), in the present case, in light of the Vienna Convention [CISG] signed by the two parties [sic, i.e., by the Contracting States] governing the underlying rules of the contracts; that the latter Convention provides in its Article 31 [CISG] that:
"If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists, if the sale involves carriage of the goods, in handing the goods over to the first carrier for transmission to the buyer";
That thus, in the absence of a specially stated term, the place of delivery is situated in Italy where the [seller] handed the goods over to the first carrier (challenged ruling pp. 4 & 5);
Since the [buyer] in its appellate briefs has relied on the notion that the [seller], by confirming its order which bore a forum selection clause in favor of French jurisdiction, had accepted that clause and that the invoices sent out subsequent to the formation of the sales contract did not contest the applicability of the disputed clause;
That by holding that that clause could not be applied, for the reason that the terms contained on the order form and on the invoices were contradictory, without responding to those grounds, the Appellate Court has tarnished its ruling with a violation of Article 455 of the New Code Civil Procedure;
Since in contractual matters, the competent court is the one of the place where the obligation which serves as basis for the claim had been or should have been performed; that [buyer] invoked a breach by [seller] of its obligation to deliver goods fit for their purpose, an obligation whose place for performance is in France, at the place where the goods had been handed over to their recipient; that nevertheless by holding that the French jurisdiction was not competent to hear that claim, the Appellate Court violated Art. 5(1) of the Brussels Convention, Art. 31 CISG (by false application) and 35 CISG (by refusal of application).
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Mode Jeune Diffusion, Plaintiff-Appellant of France is referred to as [buyer]; Maglificio il Falco di Tiziana Goti e Fabio Goti, Defendant-Appellee of Italy is referred to as [seller].
** Charles Sant 'Elia has a B.A. in Political Science and Italian Literature from New York University and studied Political Science at the Universitá degli Studi di Firenze. He received his J.D. from Pace University School of Law and is admitted to the Bar of the States of New York and Connecticut. The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.
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