Queen Mary Case Translation Programme
Court of Appeals of Paris 4 March 1998
Société Laborall v. SA Matis
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:
- Declares the reversal founded;
- Dismisses as a consequence the parties to take a proper appeal;
- Orders the [buyer] to pay to [seller] a sum of 8,000 f in conformance with Article 700 of the new Code of Civil Procedure;
- Holds that [buyer] will bear the expenses of the reversal.
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.
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Institute of International Commercial Law - Last updated August 9, 2005
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