France 30 June 2004 Supreme Court (Société Romay AG v. SARL Behr France) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040630f1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Appeal No. Y 01-15.964; Judgement No. 1136 FS-P
CASE HISTORY: 1st instance Tribunal de grande instance de Colmar 18 December 1997; 2d instance Cour d'appel Colmar 12 June 2001
SELLER'S COUNTRY: Switzerland (plaintiff)
BUYER'S COUNTRY: France (defendant)
GOODS INVOLVED: Air conditioner covers
FRANCE: Cour de cassation 30 June 2004
Case law on UNCITRAL texts [A/CN./SER.C/ABSTRACTS/82],
CLOUT abstract no. 839
Reproduced with permission of UNCITRAL
The case involved a Swiss company, a spare parts manufacturer, and a French company subcontracted to a French truck manufacturer. Under an agreement dated 26 April 1991, the Swiss company was to supply the French subcontractor with polyurethane foam casings for air conditioners exclusively manufactured for the truck manufacturer. The contract stipulated that "at least 20,000 units over a period of eight years" should be supplied, according to the needs of the truck manufacturer, which were projected to be 3,000 to 6,000 units per year. The sum to be paid by the French company was fixed in accordance with the number of casings supplied each year. On 6 December 1996, the French company informed the Swiss party that, owing to a radical change in the truck manufacturer's terms of purchase, it would no longer be using the spare parts. The Swiss company claimed damages for harm resulting from the premature termination of the contract, particularly in view of the investments that it had made to meet the order. The Colmar Court of Major Jurisdiction dismissed the claim in a judgement of 18 December 1997. The Colmar Appeal Court set aside that decision in a judgement of 12 June 2001 (CLOUT case 480), deeming that the subcontractor had breached its contractual obligations and should pay damages in accordance with CISG articles 74 and 77. It was not permitted to invoke CISG article 79.
The First Civil Division dismissed the French buyer's appeal, stating, first, that the Appeal Court had, in interpreting the elements of proof laid before it in accordance with the principles set out in CISG article 8, including the provision whereby contracts were to be interpreted in good faith, rightly concluded from the agreement that it contained reciprocal obligations of supplying and purchasing specified goods at an agreed price. The Court of Cassation held that the Appeal Court had thus considered the agreement in the context of CISG, without having to set out expressly the manufacturer's obligation to supply the goods. The Court of Cassation thus deemed that the Appeal Court had legally justified its decision in accordance with CISG articles 2, 3, 7, 8 and 30.
Secondly, it declared inadmissible, as containing new evidence, the argument that the agreement between the buyer and the manufacturer was an integral part of the agreements between the buyer and the truck manufacturer.
Lastly, it considered the Appeal Court's ruling that, despite the change in the terms of purchase for the buyer, the latter should, as a professional well-versed in international commercial practice, had stipulated that the contract should contain guarantee or review mechanisms. The Court of Cassation held that the Appeal Court had rightly concluded that, failing such provisions, the buyer should have assumed the risk of non-performance and could therefore not invoke CISG article 79.Go to Case Table of Contents
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
7A3 [Observance of good faith]; 8C [Interpretation in light of surrounding circumstances]; 79B [Impediments excusing party]
7A3 [Observance of good faith];
8C [Interpretation in light of surrounding circumstances];
79B [Impediments excusing party]
CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=981&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (French): CISG-France database <http://witz.jura.uni-sb.de/CISG/decisions/300604v.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=981&step=FullText>; Bulletin civil, 2004, I, No. 192; Légifrance: <http://www.legifrance.gouv.fr>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
French: Revue trimestrielle de droit civil, 2004, pp. 845-849, particularly p. 847, obs. Philippe Delebecque; www.dalloz.fr, under Actualité, obs. E. Chevrier; obs. Isabelle Rueda, in Chronique "Droit International et Européen" (Juris Classeur Périodique, Edition Générale), 2005, I, 110, p. 208; Revue des contrats, 2005, p. 456, note Pascale Deumier; "Sources internationales", Revue trimestrielle de droit civil, 2005, p. 335 et seq., particularly pp. 354-357, Pauline Remy-Corlay; Internationales HandelsRecht, 2005, pp. 147-151, Florian Schumacher; Droit uniforme de la vente internationale de marchandises (Dalloz 2005); Panorama 2004, p. 2281, particularly 2289, obs. Claude WitzGo to Case Table of Contents
Queen Mary Case Translation Programme
Société Romay AG v. SARL Behr France
Translation [*] by Julia Hoffmann [**]
30 June 2004
REPUBLIC OF FRANCE
In the name of the French People
The Cour de Cassation, Première Chambre Civile, delivered the following judgment:
As to the appeal brought by S.A.R.L Behr France "[Buyer]", a limited liability company, with its registered office at (...) Rouffach, France from a judgment delivered on 12 June 2001 by the Court of Appeal of Colmar (First Civil List, section A), in favor of Société Romay AG "[Seller]" with its registered office at (...), Switzerland, respondent on appeal;
The [Buyer] invokes, in support of its appeal, the four grounds annexed to this judgment;
In view of the documents provided to the Procureur général;
COMPOSITION OF THE COURT. The Court was formed, in accordance with article L. 131-6-1 of the Judicial Organization Code, in open court on 2 June 2004, as follows: M. Lemontey, président, M. Pluyette, conseiller rapporteur, MM. Renard-Payen, Gridel, Mme Marais, MM. Tay, Rivière, conseillers, Mme Trassoudaine-Verger, M. Chauvin, Mmes Chardonnet, Trapero, conseillers référendaires, Mme Petit, avocat général, Mme Aydalot, greffier de chambre;
SUBMISSION OF THE PARTIES. On the basis of the report by M. Pluyette, conseiller, the observations by Me Foussard, counsel for [Buyer], of the SCP D., and L., counsel for [Seller], the submissions of Mme Petit, avocat général, and having deliberated in accordance with the law.
PRIOR PROCEEDINGS. According to the decision on appeal (Colmar, 12 June 2001), on 26 April 1991, [Buyer] and [Seller] concluded a collaboration agreement for the supply of air conditioner covers to equip the trucks of the RVI Company. [Buyer] terminated the contract on 6 December 1993. [Seller] commenced proceedings against [Buyer] in the Tribunal de Grande Instance for restitution of the loss that it had suffered as a result of the termination of the contract. The Court of Appeal, overturned the judgment of the lower court and in application of the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG), held that [Buyer] had failed to fulfill its contractual obligations and was to make restitution of the loss suffered in accordance with articles 74 and 77 CISG, without the power to invoke Article 79 CISG.
GROUNDS OF APPEAL
[1 and 2] As to the first and second grounds of appeal, in their two parts, as set out in the Notice of Appeal and annexed to this judgment. The Court of Appeal determined, firstly, that in the disputed contract the parties were identified as "manufacturer" and "buyer", and secondly that in the contract the exact goods to be supplied, the quantities to be delivered, the method of determination of the price, and the means of payment were determined. In interpreting the elements of the evidence that were put before the court with respect to the principles set out in Article 8 CISG, and namely the principle which states that the contracts must be interpreted in good faith, the Court of Appeal was able to deduce that the agreement contained reciprocal obligations to deliver and purchase determined goods, at an agreed price such that it constituted a sale, which was subject to the Vienna Convention of 11 April 1980. Accordingly, without having expressly noted the obligation of [Seller] to transfer the property, the Court of Appeal's decision was made on a legal basis with respect to articles 2, 3, 7, 8 and 30 CISG;
 As to the third ground, as set out in the Notice of Appeal and annexed to this judgment. [Buyer] did not, at any stage, in its submissions before the judges at first instance, claim that the agreement concluded between itself and [Seller] was indivisible from the agreements concluded between [Buyer] and Company RVI. The third ground, is new and mixed with issues of fact, and is therefore inadmissible.
 As to the fourth ground, in its two parts, as set out in the Notice of Appeal and annexed to this judgment. The Court of Appeal held that [Buyer] justified the price imperatives of Company RVI as making it necessary not for the renegotiation of the price of the air conditioner covers, but the supply of a different item at a significantly lower return. However, it did not establish the unforeseeable nature of this modification of the sale conditions for the goods. As a professional who was familiar with the practices of international trade, it was for [Buyer] to provide contractual mechanisms of guarantee or revision of contract. The Court of Appeal was right to deduce, without contradiction and in seeking to establish such provisions which were claimed to have been omitted, that in the absence of such provisions, it was for [Buyer] to accept the risk of non-performance without being able to benefit from the provisions of Article 79 CISG, therefore providing a legal basis for its decision.
RULING OF THE COURT
For these reasons the Cour de Cassation rejects the appeal, and orders [Buyer] to pay costs. In view of Article 700 of the New Code of Civil Procedure, the Cour de Cassation rejects [Buyer]'s claim and orders it to pay [Seller] the sum of 2.300 Euros.
Thus determined and ordered by the Cour de Cassation, Première chambre civile, and delivered on 30 June 2004.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Defendant-Appellant Behr France of France is referred to as [Buyer], Plaintiff-Appellee Romay AG of Switzerland is referred to as [Seller].
** Julia Hoffmann, BA, Dip. Lang, LLB (Hons) (Adel.). LLM (Paris I), Solicitor of the Supreme Courts of New South Wales and South Australia.Go to Case Table of Contents