CISG CASE PRESENTATION

France 5 January 1999 Supreme Court (Thermo King v. Cigna Insurance) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/990105f1.html]

Case Table of Contents

• Case identification
• UNCITRAL abstract
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)
• Guide to links contained in case presentations

Case identification

DATE OF DECISIONS: 19990105 (5 January 1999)

JURISDICTION: France

TRIBUNAL: Cour de Cassation [Supreme Court]

JUDGE(S): Lemontey, président; Ancel, conseiller rapporteur; Renard-Payen, Durieux, Bénas, Guérin, Sempère, Bargue, conseillers; Savatier, Bignon, conseillers référendaires; Sainte-Rose, avocat général; Aydalot, greffier

CASE NUMBER/DOCKET NUMBER: P 96-19.992

CASE NAME: Thermo King v. Cigna Insurance Company of Europe SA-NV; Transports Norbert Dentressangle SA; Société Frappa SA; Société Sorhofroid SARL

CASE HISTORY: 1st instance Tribunal de commerce de Vienne 12 October 1993 [CISG not applied] ; 2d instance Cour d'appel de Grenoble 15 May 1996 [reversed]

SELLER'S COUNTRY: United States (defendant)

BUYER'S COUNTRY: France (plaintiff)

GOODS INVOLVED: Refrigeration equipment for transportation of produce, etc.

Case abstract

FRANCE: Cour de Cassation 5 January 1999

Case law on UNCITRAL texts (CLOUT) abstract no. 241

Reproduced with permission from UNCITRAL

The First Civil Division of the Court of Cassation set aside the ruling pronounced by the Court of Appeal of Grenoble, as reported in CLOUT Case 204. The Court of Appeal of Grenoble had applied the CISG in the action brought by the French sub-purchaser against the initial seller, an American company, since the latter had issued a contractual guarantee in favour of the end-user.

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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 1(1) ; 4 [Also relevant: Article 36 ]

Classification of issues using UNCITRAL classification code numbers: Unavailable

1D [Other issues of applicability: contract of sale between buyer and seller a prerequisite];

4A ; 4B [Issues covered and excluded: Convention governs only rights and obligations of buyer and seller arising out of their contract]

Descriptors: Scope of Convention ; Sale, definition of

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Editorial remarks

• Unavailable

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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=362&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG - France website ("http://Witz.jura.uni-sb.de/CISG/decisions/050199v.htm"); see also Recueil Dalloz (1999), 26th Cahier, Jurisprudence 383 ; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=362&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005)

French: Heuzé, [1999] Revue critique de droit international privé 519 et seq.; Raynard, Contrats-Concurrence-Consommation No. 53; Witz, Recueil Dalloz (1999) 383-386 [1999] Revue trimestrielle de droit civ. 490 et seq. [503 et seq.]; Leveneur, Semaine Juridique (1999) Ed. E, 962 = [1999]

Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Cassation
M. Lemontey, président
Decision no. 2 P
Appeal no. P 96-19.992

The Supreme Court of Appeals, First Civil Chamber, has rendered the following decision:

ON THE APPEAL brought by: The Thermo King company, whose principal office is 314 West 90th Street, Minneapolis Minnesota (USA), to set aside a decision rendered on 15 May 1996 by the Court of Appeals of Grenoble (commercial chamber), in favor of: 10/ The Cigna Insurance Company of Europe, private company - NV, whose principal office is 911, rue Belliard, Brussels (Belgium) and its establishment in France, 5, rue de Turin, 75009 Paris; 20/ of the Transports Dentressangle company, whose principal office is avenue du Québec, 26241 Saint-Vallier-sur-Rhône; 30/ of the Frappa company, private company, whose principal office is route d'Andance, 07100 Davezieux; 40/ of the Sorhofroid company, limited liability company, whose principal office is zone industrielle de l'Islan, 38670 Chasse-sur-Rhône, defendants to the appeal; The Cigna insurance company of Europe and the Transports Dentressangle shipping company have entered a cross appeal against the same decision; The movant […] in the main appeal invokes, in support of its appeal, upon both grounds of reversal annexed to the present ruling; The cross-movants […] in the cross appeal invoke, in support of their appeal, the only grounds of reversal annexed to the present ruling;

THE COURT, at the public hearing on 17 November 1998, where were present: M. Lemontey, président, M. Ancel, conseiller rapporteur, MM. Renard-Payen, Durieux, Mme Bénas, MM. Guérin, Sempère, Bargue, conseillers, M. Savatier, Mme Bignon, conseillers référendaires, M. Sainte-Rose, solicitor general, Mme Aydalot, chamber clerk; ARGUMENTS AND DELIBERATIONS: On the report of M. Ancel, conseiller, the observations of the SCP Delaporte et Briard, lawyers for Thermo King, of Me Cossa, lawyer for Frappa, of the SCP Célice, Blancpain et Soltner, lawyer for the Cigna Insurance Company of Europe and Transports Dentressangle, the briefs of M. Sainte-Rose, solicitor general, and after having deliberated on them pursuant to the law;

On the first grounds of appeal of the Thermo King company

GIVEN Articles 1 and 4 of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980;

WHEREAS, by the terms of those provisions, the Convention applies to international contracts for the sale of goods and governs exclusively the rights and obligations which such a contract gives rise to between the seller and the buyer;

WHEREAS, in order to make this treaty apply to the contractual relations which it defines with respect to the American company Thermo King, manufacturer of a refrigeration system installed on a truck of the French company Transports Norbert Dentressangle, which had purchased it from the French company Frappa, which itself had been furnished by the Sorhofroid company, Thermo King's concessionaire in France, the Court of Appeals held that Thermo King, by delivering a warranty to the user, had agreed to place itself in a contractual relationship with this user who, from then on, had an action based on the defect of the sold goods against the manufacturer;

WHEREAS, by being so determined, without characterizing the existence, between the Thermo King and Dentressangle companies, of a sales contract governed by the Convention [CISG], the Court of Appeals violated the above-mentioned texts;

AND on the only grounds of the cross appeal of the Cigna Insurance Company of Europe and Transport Norbert Dentressangle taken in its first branch:

• IN LIGHT OF Article 455 of the new Code of Civil Procedure;

• SINCE in affirming the decision of the court which had the Frappa and Sorhofroid companies dismissed from the suit on the basis of a warranty against latent defects, the Court of Appeals expresses no compatible reasoning with its decision to apply the CISG;

• IN DOING SO, it misunderstood the requirements of the above-mentioned text;

FOR THESE REASONS, and without there being room to rule on the second grounds of the main appeal: QUASHES AND ANNULS, in all its provisions, the ruling rendered on 15 May 15 1996, between the parties, by the Court of Appeals of Grenoble and, as a consequence, again places the suit and the parties in the state where they were before the aforementioned ruling and, to be acceded, remands the case before the Court of Appeals of Lyon;

• LEAVES TO each party the responsibility of its own expenses;

• IN LIGHT OF Article 700 of the new Code of Civil Procedure, rejects the demand of the Frappa company;

• HOLDS THAT on the reports of the general prosecutor at the Court of Appeals, the present ruling will be passed on to be transcribed in the margin or following the quashed judgment;

SO DONE AND ADJUDGED by the Supreme Court of Appeals, the First Civil Appeal Division, and pronounced by the President in his public audience of five January thousand and nine hundred ninety-nine.

FOOTNOTE

* 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 translations of French case texts for the cisgw3 database, he has translated Italian decisions and texts into English.