Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

France 4 March 1998 Appellate Court Paris (Laborall v. Matis) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/980304f1.html]

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


Case Table of Contents


Case identification

DATE OF DECISIONS: 19980304 (4 March 1998)

JURISDICTION: France

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

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

CASE NUMBER/DOCKET NUMBER: 97/24418

CASE NAME: Societé Laborall v. SA Matis

CASE HISTORY: 1st instance Trib. com. Paris 28 October 1997 [reversed]

SELLER'S COUNTRY: Italy [plaintiff]

BUYER'S COUNTRY: France [defendant]

GOODS INVOLVED: Industrial machines


Case abstract

FRANCE: Court of Appeal of Paris 4 March 1998

Case law on UNCITRAL texts (CLOUT) abstract no. 244

Reproduced with permission from UNCITRAL

The buyer, a French manufacturer and distributor of beauty-care equipment and cosmetic products, ordered a machine for manufacturing creams from the seller, an Italian company. A document sent by the seller to the buyer stipulated that delivery would take place ex works, i.e. at the seller's premises. That document did not give rise to any specific observations on the part of the buyer. Since the machine was defective, the seller offered to replace it by a machine of a different type subject to certain financial adjustments. Since this new machine presented identical problems, the buyer sued the seller before the Commercial Court of Paris, seeking an order that the lack of conformity of the equipment be remedied, subject to a penalty for non-compliance, and that damages be awarded.

The seller raised a plea of lack of jurisdiction, claiming that the High Court of Milan was competent. This plea was rejected by the Commercial Court of Paris, which invoked article 5(1) of the Brussels Convention. In the Court's view, the obligation at issue was a conformity obligation devolving upon the seller, in accordance with article 36(2) CISG. The Italian company raised an objection, invoking article 35 CISG and maintaining that the obligation regarding conformity was an obligation that was linked to the obligation to deliver the goods, which, in accordance with the agreement between the parties, was to be performed at the seller's place of business.

The Court of Appeal of Paris set aside the ruling. The obligation regarding conformity could not be deemed to be independent of the obligation to deliver, as defined in article 35 CISG, and therefore both types of obligation had to be performed at the same place, which, in the present case, was in Italy.

Go to Case Table of Contents


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 31 ; 35 [Also cited: Article 36(2) ] [Also relevant: Articles 30 ; 45 ]

Classification of issues using UNCITRAL classification code numbers:

31C1 [Place for delivery: goods at buyer's disposal at seller's place of business];

35D [Other issues concerning conformity of goods: for purpose of jurisdiction, conformity obligation not independent of obligation to deliver]

Descriptors: Delivery ; Jurisdiction ; Conformity of goods

Go to Case Table of Contents


Editorial remarks

Go to Case Table of Contents


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=327&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG - France website ("http://Witz.jura.uni-sb.de/CISG/decisions/040398v.htm"); Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=327&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.537; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 56; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 31 para. 91

French: Audit, Recueil Dalloz (1998) 30ème Cahier, Sommaires Commentés 279-281

Go to Case Table of Contents

Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Court of Appeals of Paris 4 March 1998
Société Laborall v. SA Matis

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

R.G. No. 97/07782

REPUBLIC OF FRANCE
In the name of the French People

PARTIES: COUNSEL: Defendant-appellant Société Laborall, of Via Leonardo da Vinci 4, 20088 Rosate MI (Italy), represented by Alessandro Leoni, attorney in Milan (Italy) v. Plaintiff-respondent SA Matis, of 22, rue des Capucines - 75002 Paris, represented by Anne-Marie Rouland, attorney (Cabinet Katz) D 1423.

COMPOSITION OF COURT: HEARING: RULING. During the arguments and the deliberation: président: Mrs. Cahen-Fouque, conseillers: Mr. Linden, Mr. Lachacinski; greffier during arguments and entry of the ruling: F. Liegey. Arguments at public hearing on 4 February 1998. Ruling: reversal of lower court, entered by Mrs. Cahen-Fouque, president: signed transcript of ruling with F. Liegey, greffier.

[Buyer], involved in the manufacture and distribution of materials for beauty care and cosmetics, acquired from [seller], principal office in Rosate, [Italy], a machine of the "Jupiter 100" type intended for the manufacture of beauty creams.

This machine proved to be defective and, after different interventions to try to resolve the technical problems, [seller], by letter of 23 October 1995, suggested that [buyer] replace it with a "Jupiter 150" machine, in consideration of certain financial arrangements defined between them, an offer which was accepted by [buyer] on 3 November 1995.

According to the statements of [buyer], the new machine, delivered in February 1996, presented problems identical to those of the first one, which gave rise to certain objections and technicians' interventions.

However, [buyer], considering that the material was neither in accordance with the order nor with its intended use, brought suit against [seller] before the Tribunal de commerce de Paris [Court of First Instance] seeking an order requiring that the machine put in conformity, under penalty, and to obtain an order against the [seller] to pay to [buyer], by right to repair expenses in the amount of 155,212.20 f [French francs].

By judgment of 28 October 1997, the French Court of First Instance rejected the lack of jurisdiction objection which [seller] had raised in favor of the Tribunale di Milan of Italy, by considering that with respect to Article 5(1) of the Brussels Convention, the disputed obligation is the obligation of conformity chargeable to the seller because it results from Article 36(2) of the [CISG], and because the attempts to remedy the alleged non-conformity were made by [seller] at the factory of [buyer] in France. An expert evaluation was further ordered.

The [seller] seeks reversal of this ruling by the Court of First Instance.

[Seller's position]

Based on the provisions of Article 35 of the CISG, [seller] maintains that the obligation of conformity is an obligation related to the obligation to deliver, and that the parties had contractually foreseen that the delivery would take place at [seller's] factory in Rosate, Italy, and that is within the jurisdiction of the Court of Milan.

[Seller] seeks a sum of 10,000 f in conformance with Article 700 of the new Code of Civil Procedure.

[Buyers position]

The [buyer] seeks to have [seller's] request for reversal denied, by maintaining that the obligation which serves as the basis of the demand is the obligation of warranty, very different from the obligation of delivery, and that it must be performed in France on the site of [buyer's] factory, as the first judges have held exactly.

Additionally, [buyer] relies on the fact that the goods were handed over to a carrier chosen by [seller], the only one responsible for and the organizer of the delivery; as a consequence, the obligation of delivery was performed only when the machine was delivered to [buyer's] premises in France, which also justifies the competence of the French jurisdiction.

[Buyer] seeks a sum of 8,000 f in conformance with the article 700 of the new Code of Civil Procedure.

Grounds for decision

[Seller] is a defendant domiciled in Italy, so jurisdiction must be determined in accordance with the provisions of the Brussels Convention of 27 September 1968. (Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters).

According to Article 5(1) of that Convention, a party sued can, in contractual matters, be brought, in another Contracting State, before the Court of the place where the obligation which serves as basis for the demand was or must be performed.

This place is determined in accordance to the law which governs the disputed obligation according to the rules of conflict of law of the seized jurisdiction; in the case at bar, Italian law is the Vienna Convention of 11 April 1980 (CISG), which relates to the international sale of goods.

Indeed, France and Italy being parties to this Convention on the date the contract was formed to replace the defective machine with the "Jupiter 150" machine; the contract was formed between [buyer] and [seller], who have their respective places of business in these two States, the provisions of this Convention are applicable to this contract, by virtue of Article 1(1)(a) of that text.

In the case at bar the disputed obligation is an obligation of conformity.

By virtue of CISG Articles 35(1) and 35(2)(a), the seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract; except where the parties have agreed otherwise, the goods do not conform with the contract unless they are fit for the purposes for which goods of the same description would ordinarily be used.

It results from these provisions that the obligation of conformity of the goods to their use is not independent from the obligation of delivery, so that the corresponding obligations are performed or must be performed in the same place.

In the present case, the arrangement contained in the contractual language dated 23 October 1995 sent by [seller] to [buyer], foreseeing the seller's factory in Rosate, Italy, as the place of delivery, whose application is claimed by [seller], led to no particular objection on the part of the [buyer]..

The relevant communication between the parties recognizes that the goods were to be handed over to a carrier chosen by [seller], as has occurred so that, in any case, by application of the provisions of Article 31 of the [CISG], the obligation of the disputed conformity had to be performed in Rosate.

The disputed obligation having to be performed in Italy, the provisions of Article 5(1) of the Brussels Convention, which foresee the competence of a jurisdiction of a Contracting State different from that of the place of residence of the [seller], are not applicable.

As a consequence, in this case the competence can be determined only with respect to Article 2 of the Brussels Convention.

Ruling of the Court

It follows that the dispute falls within the competence of the Tribunale di Milano, in whose jurisdiction the [seller] has its principal place of business.

The reversal sought by [seller] will be declared as a consequence well-founded.

[Buyer] will have to pay to [seller] a sum of 8,000 f in conformance with Article 700 of the new Code of Civil Procedure.

For these reasons, the Court:


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the defendant-appellant Société Laborall of Italy, is referred to as [seller]; plaintiff-respondent SA Matis of France, as [buyer].

** 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. In addition to translation of French case texts for the cisgw3 database, he has translated Italian decisions and texts on linguistics into English.

The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated August 9, 2005
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography