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France 15 May 1996 Appellate Court Grenoble (Thermo King v. Cigna Insurance)
[Cite as: http://cisgw3.law.pace.edu/cases/960515f1.html]

Primary source(s) for case presentation: Michael R. Will; UNCITRAL abstract; Unilex abstract

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Case identification

DATE OF DECISION: 19960515 (15 May 1996 )


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

JUDGE(S): Beraudo (président); Baumet, Comte (conseillers); Combe (greffier)


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]; 3d instance Cour de Cassation 5 January 1999 [reversing]

SELLER'S COUNTRY: United States (defendant)

BUYER'S COUNTRY: France (plaintiff)

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

Case abstract

FRANCE: Grenoble Court of Appeal 15 May 1995

Case law on UNCITRAL texts (CLOUT) abstract No. 204

Reproduced with permission from UNCITRAL

The company Sorhofroid, a franchised import dealer of the American company Thermo King, sold to the company Frappa a refrigeration unit, which was subsequently resold to the company Transports Norbert Dentressangle. The latter loaded goods to be delivered to the company Système U, which refused them because they had thawed.

Having before it an appeal lodged by the company Thermo King against the ruling of the Commercial Court, whereby liability for the damage due to thawing had been shared between Thermo King and Transports Norbert Dentressangle, the Court of Appeal allowed the action brought directly by the sub-purchaser against the initial seller.

The applicable-law clause in the contract (Minnesota law) and the arbitration clause contained in the initial contract between Thermo King and Sorhofroid, both of which clauses had been invoked by Thermo King, were found by the Court to be inapplicable to the sub-purchaser, which was not party to the initial contract. The Court ruled, moreover, that only the franchise contract and not sales made in application of that contract should be subject to the Minnesota law chosen by the parties. In addition, the Court stressed that CISG was applicable, unless otherwise agreed, to sales concluded after 1 January 1988 between a seller and a buyer with their places of business in the United States and France, respectively. The Court found that the sub-purchaser could base his action against the American seller on CISG, since the seller had issued a contractual guarantee in favour of the end-user.

The Court found articles 35(2)(a) and 36 CISG to be applicable with regard to the defects of the refrigeration unit, noting that the unit had broken down within a short period of time after it was first operated and that it was up to the seller, presumed liable, to prove that it was not responsible for the defect. Notwithstanding any more precise determination of the defect, the early breakdown established the Court's finding of lack of conformity and its assigning of full liability to Thermo King.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]


Key CISG provisions at issue: Articles 1(1) ; 35(2)(a) ; 36(2) [Also cited: Article 4 ]

Classification of issues using UNCITRAL classification code numbers:

1D [Applicability (definition of a sale): sale to a buyer accompanied by seller's direct guarantee to transport company (relationship between seller and transport company held to be a sales contract governed by the CISG)];

35B1 [Conformity of goods to contract: fitness for goods of same description];

36B [Time for assessing conformity of goods: lack of conformity occuring after passage of risk (seller's guarantee)]

Descriptors: Applicability ; Sale, definition of ; Conformity of goods ; Passage of risk

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Editorial remarks

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Citations to other abstracts, case texts and commentaries


English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=243&step=Abstract>; [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 8

Italian: [1998] Diritto del Commercio Internazionale 1107-1108 No. 213


Original language (French): CISG - France website ("http://Witz.jura.uni-sb.de/CISG/decisions/150596v.htm"); CISG online website ("http://www.jura.uni-freiburg.de/ipr1/cisg/urteile/text/219.htm"); Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=243&step=FullText>

Translation: Unavailable


English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.569, 609; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 27; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 35 para. 49

French: Witz, Dalloz Sirey (1997) Somm. 221-222

German: Witz/Wolter, Recht der Internationalen Wirtschaft (RIW) 1998, 278 [284-285]

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Pace Law School Institute of International Commercial Law - Last updated August 9, 2005
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