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CISG CASE PRESENTATION

France 14 January 1998 Appellate Court Paris (Societé Productions v. Roberto Faggioni)
[Cite as: http://cisgw3.law.pace.edu/cases/980114f1.html]

Primary source(s) of information for case presentation: UNCITRAL abstract; Michael R. Will; CISG - France website

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Case identification

DATE OF DECISIONS: 19980114 (14 January 1998)

JURISDICTION: France

TRIBUNAL: CA Paris [CA = Cour d'appel = Appeal Court]

JUDGE(S): Cahen-Fouque, président; Linden, Lachacinski, conseillers; F. Liegey, greffier

CASE NUMBER/DOCKET NUMBER: 97/17127

CASE NAME: Societé Productions v. Roberto Faggioni

CASE HISTORY: 1st instance Trib. com. Paris (97/08783) 8 July 1997 [affirmed]

SELLER'S COUNTRY: Spain [defendant]

BUYER'S COUNTRY: France [plaintiff]

GOODS INVOLVED: Two elephants


Case abstract

FRANCE: Cour d'appel de Paris 14 January 1998

Case law on UNCITRAL texts (CLOUT) abstract no. 312

Reproduced with permission from UNCITRAL

A French company purchased two circus elephants from a Spanish trader. The agreed price was paid by transfer to the seller's bank account in Perpignan. The buyer, maintaining that the veterinary services had not authorized the animals' importation, "cancelled" the purchase. The seller, noting that the cancellation had taken place 70 days after the invoice date and for reasons not connected with the animals, refunded only part of the price paid. The buyer had a preventive attachment order served to freeze the seller's account and sued the seller before the Commercial Court of Paris with a view to having the contract declared avoided, the balance of the price paid refunded, damages awarded and the attachment order validated.

Invoking the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Civil and Commercial Judgements, the Commercial Court declined jurisdiction in favour of the Spanish courts.

The Court of Appeal upheld the decision and applied article 5(1) of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Civil and Commercial Judgements, according to which a defendant may be sued, in contractual matters, in the courts of the place at which the obligation forming the basis of the claim has been performed or is to be performed. In order to determine the place of performance of the obligation to refund the sales price, the Court first referred to the CISG, which is applicable by virtue of article 1(1)(a) CISG. In the absence of any specific provisions, the Court considered, pursuant to article 7 CISG, whether the question of the place of restitution of the price by the seller following cancellation of the sale could be settled in accordance with the general principles on which the CISG is based. The Court held that the provisions of article 57(1) CISG could not be construed as a general principle regarding the place of payment, since one party had both the capacity of seller and the capacity of creditor, with the result that the obligation to pay, in the absence of any particular stipulations, at that party's place of business could correspond to the principle of payment at the seller's domicile as well as to that of payment at the creditor's domicile. The Court therefore referred to the law applicable by virtue of the rules of private international law and consequently applied article 3 of the Hague Convention of June 1955 on the Law Applicable to International Sales of Goods. The Court thus arrived at the law of the seller and applied article 1171 of the Spanish Civil Code, which provides that payment is in principle to be made at the debtor's domicile. That place is, in the present case, the domicile of the Spanish seller. The lower-court judges had thus rightly declined to exercise jurisdiction.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7(2) ; 57(1) [Also cited: Articles 81(2) ; 84(1) ]

Classification of issues using UNCITRAL classification code numbers:

7C2 ; 7C22 ; 7C23 [Gap-filling: problems governed by Convention but not expressly settled; Recourse to general principles on which Convention is based; Gap-filling by domestic law (Issue: place of restitution of price by seller following cancellation of sale. Regarding one party as both seller and creditor, court refused to reason by analogy from art. 57(1); went instead to law applicable by rules of private international law];

57A [Place for payment of sales price: in absence of agreement, payment at seller's place of business]

Descriptors: Gap-filling by Convention ; General principles ; Private international law, gaps in Convention ; Payment, place of ; Restitution ; Jurisdiction

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Editorial remarks

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Citations to other abstracts, texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=278&step=Abstract>

German: [1999] Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER)/Revue suisse de droit international et de droit européen 201

CITATIONS TO TEXT OF DECISION

Original language (French): CISG - France website ("http://Witz.jura.uni-sb.de/CISG/decisions/140198v.htm"); [1998] Recueil Dalloz Som. 288; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=278&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 81 para. 18a

French: Audit, Dalloz (1998), Somm. Comm. 288-289

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Pace Law School Institute of International Commercial Law - Last updated August 9, 2005
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