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CISG CASE PRESENTATION

France 19 January 1998 District Court Besançon (Flippe Christian v. Douet Sport Collections) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/980119f1.html]

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

Case Table of Contents


Case identification

DATE OF DECISIONS: 19980119 (19 January 1998)

JURISDICTION: France

TRIBUNAL: Tribunal de commerce [District Court] de Besançon

JUDGE(S): Cleau, président; Bougnon, Landry, juges; Cazali, greffier

CASE NUMBER/DOCKET NUMBER: 97 009265

CASE NAME: Flippe Christian v. SARL Douet Sport Collections

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France (defendant)

BUYER'S COUNTRY: Switzerland (plaintiff)

GOODS INVOLVED: Sports clothes (judo suits)


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 35 ; 39 ; 79 [Also cited: Articles 36 ; 49 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

35A ; 35B [Conformity of goods to contract: quality required by contract; Requirements imposed by law];

39A ; 39B [Buyer must notify seller of lack of conformity within reasonable time; Cut-off period of two years];

79C [Impediment excusing party from damages: non-performance attributable to third-party contractor]

Descriptors: Conformity of goods ; Lack of conformity notice, timeliness ; Exemptions or impediments

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

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=416&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG - France website (http://Witz.jura.uni-sb.de/CISG/decisions/190198v.htm"); Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=416&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 86, 87, 130, 142; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 79 para. 40; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 73, 157; Carla Spivack, 27 Pennsylvania Journal of International Economic Law (Fall 2006) n.182 [commentary on Art. 79 issues]

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Commercial Court of Besançon 19 January 1998

Mr. Flippe Christian v. SARL Douet Sport Collections (SABAKI)

Translation [*] by Charles Sant 'Elia [**]

N. 97 009265

HEARING: COMPOSITION OF COURT: PARTIES: COUNSEL. On 19 January 1998, where were presiding Mr. Georges Cleau, Judge serving as Président, Mr. André Bougnon and Mr. Lionel Landry, Judges, assisted by Maître Cazali, Court Clerk. Between Mr. Flippe Christian, residing at Chemin des Vergers 3 - 1197 Prangins (Canton de Vaud), Switzerland, [buyer], Plaintiff, represented by Maîtres Serri, Attorneys of the Besançon bar, v. SARL Douet Sport Collections (SABAKI), whose corporate office is at 8 rue de Vannolles 25300 Pontarlier [France], [buyer], Defendant, represented by Maître Cadrot, attorney of the Besançon bar.

1. Object of the claim

Lawsuit of 9 September 1996. Object of [buyer]'s action:

-   To establish the liability of [seller] and declare the rescission of the sale which was the subject of the invoice dated 31 July 1995 for a sum of [French francs] f 23,403, not including taxes.
To order [seller] to reimburse the sum expended, that is f 23,403, with provisional enforcement of the judgment, as well as the payment of interest calculated at the legal rate to be calculated on each of the payments of f 11,703 and f 11,700 by [buyer]. To likewise order reimbursement of the French and Swiss customs costs for an exchange value in French francs of [Swiss francs] Sf 475.
To order [seller] to pay f 5,000 as damages and interest for frivolous defense and commercial damages, as well as the sum of f 5,000 pursuant to the application of the provisions of Article 700 of the New Code of Civil Procedure.

At the hearing of 17 February 1997, presided over by Mr. Georges Cleau, assisted by Mr. Claude Gardavaud and Mr. Didier Damy, Judges, the matter was deliberated upon on that day.

2. Grounds of the parties

      2.1 Buyer's position

The [buyer], promoter of a Judo club in Switzerland, purchased from [seller] 69 children's sweatsuits for f 16,008 and 29 adult sweatsuits for f 7,395 - goods invoiced by [seller] on 31 July 1995 (Invoice no. 95/464) for a total sum of f 23,403 not including taxes, invoice paid in full by [buyer].

These sweatsuits were intended for resale to members of a Judo club. The dispatching of the clothing lead to some customs costs for a sum of Sf 475.

The resale of these articles having begun by mid-September, [buyer] received, beginning on 15 December 1995, a dozen letters of complaint from the purchasers, relating to a significant shrinkage, in the range of 6 to 8 centimeters, of the goods after washing.

Having found himself in difficulties with respect to the members of his club, [buyer] then responded by two letters on 5 February and 18 March 1996, in which he demanded, first of all, an amicable arrangement, and then, after [seller]'s silence, the total reimbursement of the concluded sale.

On 14 May 1996, [buyer] likewise had some tests conducted by the Institut Suisse d'Essais Textiles - TESTEX - which observed a shrinkage of 6.5% following a washing of the clothes conforming to the indications contained on their tags, thus exceeding the tolerated limit of 3%, that level of shrinkage being deemed excessive by TESTEX.

As to the juridical grounds, the [buyer] invokes the application of the Vienna Convention of 11 April 1980 [CISG], which in its Articles 36 and 39 provides that the buyer has a period of two years, calculated from the date when the goods are handed over to buyer, to enforce the seller's liability for a lack of conformity of the goods by the latter, and thus asserts that by his letters of 5 February and 18 March 1996, he was well within the period to rely on the non-conformity.

Relying on article 49(1) CISG, [buyer] thus demands avoidance of the sale and the reimbursement of the sum expended of f 23,403 plus interest at the legal rate, as well as the customs fees.

      2.2 Seller's position

The [seller], first of all, contests the application of the CISG, relying on the fact that the order and the delivery took place in France, the goods having been delivered to GEX in the département of l'Ain, to a friend of [buyer]. [Seller] likewise deduces from this that the customs fees could be solely the responsibility of [buyer] who undertook to import the goods into Switzerland [sic; translator's note].

As to the obligation of delivery, [seller] wonders why [buyer] had waited six months before notifying the [seller] of the problems with the quality of the goods, and infers that [buyer], by demanding avoidance rather than an exchange, is seeking to annul a transaction which was not a good business deal for [buyer].

In order to respond to the TESTEX analysis, [seller] has interrogated its supplier, the Etablissements Ballay of 70290 Planches BAS, who themselves had questioned the Etablissements Sotratex of Troyes, manufacturer of the suede-finished fabric used in the production of the goods in question.

That manufacturer responds that usually in dealing with this type of complex stitched product which underwent some smoothing and scratching treatment, its clients are aware that the required dimensional durability can not be less than 5% and that a foreseen tolerance of 5 to 7% in the shrinkage of the articles is customary. The [seller] thus considers that the product is conforming to what one can normally expect and that the demand for avoidance of the sale for non-conformity is unfounded.

Regarding the demand for damages and interest, as to the issue of the discredit suffered by [buyer] with respect to his clientele, the [seller] replies that [buyer] is not a merchant and thus cannot invoke commercial damages for loss of reputation.

3. Court's reasoning

Whereas [buyer]'s claim as well as the numerous correspondence of the buyers of the goods whose quality is contested, and the analysis conducted by the TESTEX Institute, tend to prove that there exists a real problem of conformity in the goods sold to [buyer] by [seller];

Whereas [buyer] is a Swiss national and the goods sold were invoiced to his place of residence in that country, the Vienna Convention [CISG] applies between the two parties;

Whereas pursuant to Articles 35, 36, 39 and 49 CISG, [buyer] gave notice to [seller] of the problem in conformity encountered in using the delivered goods within the period of two years, it is proper to hold that [buyer] would be within his rights to obtain avoidance of the sale;

Whereas nonetheless, on the one hand, [buyer] does not produce proof that the entire quantity of the goods had posed a problem, and that he also derived a profit from part of the delivered goods; on the other hand, that [seller] finding itself in the position of a seller of a product whose manufacture and notably whose elaboration of the fabrics are beyond [seller]'s control, it is proper, in the absence of a showing of bad faith on [seller]'s part, to allow [seller] the benefit of Article 79 CISG.

The Court will thus provide a reduction of the price in the proportion of 35% to the invoiced amount and will order [seller] to reimburse [buyer] for the sum of f 8,191.05, the reimbursement of customs fees and the payment of damages and interests at the legal rate excluded.

As to the claims of damages and interest for frivolous defense and commercial damages for loss of reputation, it is proper to deny them.

The Court will nonetheless order [seller] to pay the sum of f 3,000 pursuant to Article 700 of the New Code of Civil Procedure. Bearing in mind the elements of the cause of action, the Court will likewise order provisional enforcement of the decision,

4. Court's ruling

For these reasons, the Court, ruling against [buyer], in the first instance, after having deliberated according to the law:

-   Declares [buyer]'s demand partially admissible;
Orders [seller] to pay [buyer] the sum of f 8,191.05 matched with interest at the legal rate to be calculated from the date of the complaint;
-   Orders [buyer] to pay also the sum of f 3,000 pursuant to Article 700 of the New Code of Civil Procedure and court costs;
Orders the provisional enforcement of the present decision.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Flippe Christian, Plaintiff of Switzerland is referred to as [buyer]; SARL Douet Sport Collections, Defendant of France is referred to as [seller]. Amounts in French currency (French francs) are indicated as [f]; amounts in the currency of Switzerland (Swiss francs) are indicated by [Sf].

** 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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Pace Law School Institute of International Commercial Law - Last updated February 20, 2007
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