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CISG CASE PRESENTATION

France 27 January 1998 Supreme Court (Hughes v. Société Technocontact) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/980127f1.html]

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

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Case identification

DATE OF DECISIONS: 19980127 (27 January 1998)

JURISDICTION: France

TRIBUNAL: Cour de Cassation [Supreme Court]

JUDGE(S): Lemontey, président; Ancel, conseiller rapporteur; Renard-Payen, conseiller; Roehrich, avocat général; Aydalot, greffier de chambre

CASE NUMBER/DOCKET NUMBER: B 95-19.448

CASE NAME: Hughes v. Société Technocontact

CASE HISTORY: 1st instance Commercial Court of Versailles [-]; 2nd instance Cour d'appel de Versailles 19 April 1995 [affirmed]

SELLER'S COUNTRY: France [plaintiff]

BUYER'S COUNTRY: England [defendant]

GOODS INVOLVED: Hooks, sockets/cartridges for fitting to electrical connectors


Case abstract

FRANCE: Court of Cassation 27 January 1998

Case law on UNCITRAL texts (CLOUT) abstract no. 224

Reproduced with permission from UNCITRAL

An English buyer, the defendant, approached a French seller, the plaintiff, with a view to purchasing hooks and sockets for fitting to electrical connectors. Several facsimiles were exchanged between the parties. The buyer filled out a purchase order, stating the quantities, references and unit price per socket. The seller submitted an acknowledgement of receipt of the order, setting out the same terms as the purchase order. The buyer subsequently ordered an additional quantity of hooks from the seller. Following a request from the buyer to change the technical specifications, the seller sent a drawing to the buyer, showing that the original perforations had changed. Nevertheless, some of these parts were delivered. However, the buyer pointed out by letter that it no longer intended to honour its orders for the balance, invoking a confusion over the price. The buyer also pleaded a lack of conformity, the longitudinal perforation of the hooks being shorter than that specified in the contract. The seller accordingly sued the buyer, requesting payment of the price.

The Court of Appeal of Versailles, with which an appeal was lodged against the decision pronounced by the Commercial Court of Versailles, ruled on the merits without first looking into the question of the applicable law. It held that the price had indeed been agreed upon and that the buyer could not demonstrate that it had been the victim of a basic misunderstanding, given the number of documents that had been exchanged. The plea of non-conformity was also rejected by the Court of Appeal.

In its further appeal to the Court of Cassation, the English buyer relied solely on the defence of non-conformity. It invoked the CISG and maintained that the Court of Appeal had deprived its decision of any legal basis by not specifying the rule of law on which its decision was founded and had also disregarded article 18 CISG, which stipulates that silence on the part of the offeree does not amount to acceptance.

The Court of Cassation rejected the further appeal on the ground that the Court of Appeal had not disregarded the rule whereby silence does not in itself amount to acceptance. This superior court ruling was thus pronounced without any express reference to the CISG.

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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 issues: Article 18 [Also cited: Article 49 ]

Classification of issues using UNCITRAL classification code numbers:

18A3 [Criteria for acceptance; silence or inactivity insufficient]

Descriptors: Acceptance of offer

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Editorial remarks

Excerpt from Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at 299-440 at 344

"[The] French court ... found that silence operated as acceptance when a buyer accepted goods without reservation. The buyer subsequently sought to reject the goods, claiming that his silence about the condition of the goods did not indicate acceptance, but the court found that the non-conformity claimed by the buyer was obvious to an expert such as the buyer who had specified the modifications in the goods."

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=279&step=Abstract>; [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 9

French: Juris-Classeur Périodique-E (1998) ed. G IV 1597 (512); Juris-Classeur Périodique ed. E (1998) 445

German: [1999] Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER)/Revue suisse de droit international et de droit européen 200-201

CITATIONS TO TEXT OF DECISION

Original language (French): CISG - France website ("http://Witz.jura.uni-sb.de/CISG/decisions/270198v.htm"); [1998] Bulletin des arrêts de la Cour de Cassation, I, No. 28 [18-19]; Banque de Donnée Juridiques Française (Juris-Data) No. 000218; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=279&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) §: 3-7 n.60; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 8 para. 36

French: Witz, Recueil Dalloz (1998) 312-313; Pré,vost, [1998] Dalloz Affaires 337

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Case text (English translation)

Queen Mary Case Translation Programme

Cour de Cassation [Supreme Court] 27 January 1998
Hughes v. Société Technocontact

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

Translation edited by Kirstin Stadtländer [***]

Ruling No. 180 P
Appeal No. B 95-19.448

FRENCH REPUBLIC
In the name of the French People

PARTIES. The Supreme Court of Appeals, First Civil Chamber, has rendered the following ruling: On the appeal brought by "Société Hughes Electronic" [buyer], merchant residing at Southwark Business Center Unit G - Ayres Street, London (Great Britain), to reverse a ruling rendered on 19 April 1995 by the Court of Appeals of Versailles (12th chamber, section 1), in favor of Société Technocontact [seller], of 145, rue Yves le Coz, 78000 Versailles, defendant in the appeal [i.e., respondent]; The [buyer] invokes, in support of his appeal, the sole grounds annexed to the present ruling;

COMPOSITION OF COURT AND COUNSEL. The Court, composed pursuant to Article L. 131-6, para 2, of the Code of Judicial Organization, at the public hearing of 9 December 1997, where were present: M. Lemontey, presiding judge, Mr. Ancel, reporting judge, Mr. Renard-Payen, judge, Mr. Roehrich, attorney general, Mrs. Aydalot, court clerk; On the report of Mr. Ancel, judge, the briefs of SCP Nicolaÿ et de Lanouvelle, [buyer's] attorney, of Me Luc-Thaler, attorney for [seller] in the rights of Souriau Cluses, the briefs of Mr. Roehrich, attorney general, and after having deliberated pursuant to the law;

On the sole grounds of appeal, taken in its two branches:

But since the challenged ruling clearly reveals that the modification of the technical characteristics of the parts ordered by [buyer] from [seller] had been asked for by the buyer himself, who had then accepted, without formulating reservations, the plan of the parts containing the modification, as well as the delivery of the modified parts;

From which it results that, contrary to the assertion in [buyer's] appeal, the Appellate Court of Versailles did not misunderstand the rule according to which silence, by itself, does not amount to acceptance. The challenged decision is thus legally justified;

For these reasons, the Cour de Cassation:

So done and adjudged by the Supreme Court of Appeal, First Civil Chamber, and announced by the presiding judge in his public hearing on the twenty-seventh of January one thousand and nine hundred ninety-eight.

Appeal argued by the SCP Nicolaÿ et de Lanouvelle, counsel for [buyer]; Grounds annexed to the ruling N 180 p (CIV. 1).

Arguments invoked in support of appeal by the [buyer]

[Buyer] has objected to the challenged ruling for having ordered him to pay to [seller] the price of the goods ordered from the latter and to take delivery of the ordered goods.

As to the reasons why [buyer] had accepted the modification of the parts: that indeed, the initial plan had been modified on 16 November 1990 by another plan which already contained the modification of the exact measurement between the edge of the hook and the perforation, which passed from 7.30 to 5 millimeters, this new figure being quoted and indicated in the second drawing; that this clearly visible modification for a non-professional could not escape [buyer], a specialist on the subject, who nevertheless had to state some challenge or observation on this point; that it evidences that the parts were made according to his instructions, with agreement on his part regarding the disputed modification; that in these conditions, the plea of non-conformity of the parts would not be capable of being maintained in fact, whatever the applicable text may be, notably the CISG in its Article 49 supposing it is applicable:


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation Defendant-Appellant Hughes of England is referred to as [buyer]; Plaintiff-Respondent Société Technocontact company (in the rights of Souriau Cluses company of France) 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.

*** Kirstin Statländer is a student of law at Humboldt University Berlin. She was a member of the team of Humboldt University at the 9th Willem C. Vis International Commercial Arbitration Moot 2001/02 and is a coach of the team at the 10th Willem C. Vis International Commercial Arbitration Moot 2002/03.

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Pace Law School Institute of International Commercial Law - Last updated August 8, 2005
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