បណ្ណសារចំណាត់ក្រុម៖ យុត្តិសាស្រ្ត
case 57 ( 1 to 57 source : lexinter.net)
Supreme Court of Appeal
Civil Division 1
Public hearing on June 25, 2002 Rejection.
Appeal No.: 99-15915
Published in the Newsletter Chair: Mr. Lemontey. Rapporteur: Mr. Sempere. Advocate General: M. Sainte-Rose. Lawyers: The CPS-Desaché Bret and Laugier, CPA Boré, Xavier and boron .FRENCH REPUBLIC
ON BEHALF OF THE FRENCH PEOPLE
Whereas the company Delta Armor Protection has completed the installation of a system of video surveillance on the premises of the company Braff, she sued the company Braff in payment of the balance of this facility, while the company has counterclaim made a claim for payment of damages;The first plea in its two branches;
Whereas the company Braff accuses the order confirming attacked (Rennes, March 18, 1999) to have dismissed the application, then, in a way:
1 ° that the seller of a product that is under a duty to provide advice with respect to the buyer must ensure that the installation of the hardware is compatible with current regulations, saying that seller’s duty was limited to technical competence, regardless of what the installation of cameras in the cafeteria of the company was prohibited by the laws of the Labour Code, the Court of Appeal violated Article 1135 the Civil Code;
2 ° the provision of equipment unusable under current regulations was generating a compensable injury;
But whereas the Court of Appeal, on the one hand, noted that the duty to advise the company Delta Armor protection was part necessarily in their area of technical competence , on the other hand, she held that the sovereign Braff company no justification for any injury, that the plea is unfounded;
The second plea: (Publication no interest);
For these reasons:
Dismiss the appeal.
Publication: I No. 2002 p. 177 The contested decision: Court of Appeal of Rennes, 1999-03-18
case 56
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Civil Division 3
FRENCH REPUBLIC
THE COURT OF APPEALS, THIRD CIVIL DIVISION, made the following ruling: Whereas, according to the judgment (Lyon, June 26, 2003), which, by act of May 31 and June 7, 1994, the town of Dardilly acquired a parcel owned by the society of Old briquette Limonest, on which the tenant and sublessee of the latter had operated a landfill whose activity was arrested by the prefect’s decision June 12, 1980, that, by order of July 7, 1982, work planning and pollution control have been ordained, that the town of Dardilly requested the cancellation of the sale to the absence of information on the operation of a classified installation; The unique way: Having regard to Article L. 514-20 of the Code of the environment; Whereas when a facility requires a permit has been operating on land, the seller of this land is required to inform the purchaser in writing, he also informed, provided he knew of the dangers or significant disadvantages that result from the operation; Whereas, to deny the request resolution formed by the town of Dardilly, stop holding that it could be argued that it was unaware that a classified facility was operated on the land acquired and caused a nuisance when orders prefecture in 1975, 1980, 1982 and 1988 had been notified and that e had been exchanged between it and the operating company followed by a meeting she organized in 1988; What s tatu well, while the seller had failed to notify the purchaser in connection with the sale, the Court of Appeal violated the text referred to above;
FOR THESE REASONS:
Quashed, in all its provisions, the decision of June 26, 2003, between the parties, the Court of Appeal of Lyon;
calls, therefore, the cause and the parties in the state they were before the judgment and to be granted, the returns before the Court of Appeal of Dijon;
Society condemns Old briquette Limonest (ABL) at the expense;
Having regard to Article 700 of the new Code of Civil Procedure, the company formerly condemned briquette Limonest to pay the sum of 1900 euros to the town of Dardilly;
Having regard to Article 700 of the new Code of Civil Procedure, dismissed the application for the company formerly briquette Limonest (ABL);
Said that the audit of the Attorney General at the Court of Cassation, the above will be sent to be transcribed in the margin or as a result of the broken off;
Well done and tried by the Court of Cassation, Third Civil Chamber, and pronounced by the President in a public hearing on 12 January two thousand and five.
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case 55
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Supreme Court of Appeal
FRENCH REPUBLIC See Section 1315 of the Civil Code ; Whereas Ms. Cardoso has acquired a used motor vehicle from Mr. Guillot, garage, an expertise ordered in chambers ruled that the vehicle had been broken, as the support of its action for annulment of the sale to reluctance fraudulent, Ms. Cardoso argued that the seller had concealed the accident; Whereas, to deny the request, the decision holds that Ms. Cardoso did not bring evidence of such concealment, by so holding, while the e professional seller is under a duty to inform against his client and its responsibility to prove that such an obligation, the Court of Appeal violated the text referred to above; For these reasons, and without any need to rule on the second part of the plea: Quashed, in all its provisions, the decision of September 24, 1998, between the parties, the Court of Appeal of Lyon; shall, therefore, the cause and the parties in the state they were before said stop, and to be granted, the returns to the Court of Appeal of Lyon, differently composed.
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case 54
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THE COURT OF APPEALS, FIRST CIVIL DIVISION. Limited training. October 16, 2001. Decision No. 1579. Rejection. Appeal No. 99-16854. NOTE Leveneur, Lawrence, Contracts Competition Consumer Affairs, No. 2, 01/02/2002, pp.? 11-12 On appeal by: 1 ° / Switzerland company, limited liability company, successor in law of the Union Phoenix Spanish (UPE), headquartered 86, boulevard Haussmann, 75830 Paris Cedex 08, 2 ° / David Couturier, remaining residence Empire 3, place Napoleon, 85000 La Roche-sur-Yon, to quash a decision of 19 May 1999 by the Lyon Court of Appeal (6th bedroom), for: 1 ° / of the primary health insurance fund (CPAM) in Lyon, with its headquarters 102, rue Masséna, 69006 Lyon, 12, rue d’Aubigny, 69003 Lyon, 2 ° / company Darty Rhone-Alpes, limited liability company, headquartered National Road 6, 69760 Limonest 3 ° / company PSL Thiébaud Alain, headquartered 24, rue Gorge de Loup, 69009 Lyon, defendants to appeal; By document lodged at the Registry of the Supreme Court March 20, 2001, the Swiss company said accidents continue suit in lieu of the company, Switzerland; The plaintiff relies in support of its appeal, the sole means of appeal annexed to this Order; Produced by means of Me Nervo, a lawyer for the company Boards Switzerland and M. Couturier. The way criticizes the judgment For saying there are no grounds to hold the breach of contract against the company following the damage DARTY October 10, 1993 by Mr. Couturier and dismissed him and his insurer, the company SWITZERLAND, their action liability against the seller The grounds that at the end of August 1992, Miss LYONNET companion had ordered Mr. COUTURIER the Company DARTY a washing machine and stove; DARTY the Company had outsourced the delivery and the installation of these devices to the Company THIEBAUD, that October 10, 1993, a gas explosion caused by a faulty connection of the stove had ravaged the apartment of Mr. Couturier and caused him injury. the Co. SWITZERLAND invoked a duty to ensure safety on the Company DARTY as a seller and installer reported the “bond of trust ‘under which the company assured DARTY delivered to the device, connection and commissioning Free the existing facility, that the obligation of result carried both presumption of fault and presumed causal link between the service provided and the damage alleged, that he appeared from the evidence produced in the debate that the anticipation of the provision a connecting pipe was specified on the order but there was no record on the flow and that the installation sheet relating the various methods used in setting up the washing machine but no one on the stove outside the words “no test” that this form was signed by Miss Lyonnet for each appliance receipt of the material complies in good condition and confirming that the explanations and operations described were executed, that Mr. THIEBAUD and his employee argued that the transactions described in the schedule of installation and adjustment of slow burners had been made, that these statements Lyonnet Miss and Mr. Couturier opposed their claim that the staff had conducted DARTY to the entire system; that resulted from reports of the expert and the expert POURQUERY PARISOT several hypothesis about the cause of Demanche the hose from the gas stove that caused the gas leak and that the misconduct by company THIEBAUD and relied upon by the Company and Mr. Couturier SWITZERLAND use of a lubricant and no clamp type Serflex was not demonstrated, that just was not established the causal link between the provision of the Company DARTY and explosion. WHILE the seller professional installer is required to the equipment in working order, so it is safe for people and property, it is an obligation of result; only in the event of an explosion of equipment sold, it can not escape liability by demonstrating that he did not at fault in relation to the injury; in dismissing Mr. Couturier and Company SWITZERLAND their action for damages against the Company DARTY, professional salesman required by his contract to install equipment on the grounds that the fault of the installer in relation to the injury was not established, the Court Appeals violated Articles 1315 and 1147 of the Civil Code. And while the obligation to deliver the vendor contains an accessory obligation information and advice, in dismissing Mr. COUTURIER SWITZERLAND and the Company of their claims for compensation for damage caused by the explosion of the gas stove sold the company without seeking DARTY as requested findings call if this company and its subcontractor had attracted the attention of the user on precautions for use of equipment, the Court of Appeal private decision of any legal basis under Article 1147 of the Civil Code. THE COURT Acknowledges the Swiss company crashes it takes the body followed by the company, Switzerland; On the sole ground, taken in its two branches: Whereas in August 1992, Miss Lyonnet, with Mr. Couturier, has ordered the company Darty of a gas stove, the aircraft was delivered on September 7, 1992 by a subcontractor, the Thiébaud company, that on 13 October 1993, an explosion damaged the apartment of M. Couturier, and caused one injury and that, according to the legal expert, the explosion was caused by a gas leak in a row Demanche the hose to the stove that was not fixed by a clamp to the pipe, it is not possible to say whether this failure was from a faulty installation of the company or Mr. Thiebaud Couturier Lyonnet or Miss; Whereas M. Couturier and his insurer, the company Switzerland, complain that the judgment (Lyon, May 19, 1999) have dismissed their action for damages brought against the company Darty, then, according to the means: 1 ° / the seller, professional installer is required to the equipment in working order, so it is safe for people and property, it is an obligation results, that in the event of an explosion of equipment sold, it can not escape liability by demonstrating that he did not at fault in relation to the injury; in dismissing M. Couturier, Switzerland and the company of their action for damages against the company Darty, professional salesman required by his contract to install equipment on the grounds that the fault of the installer in relation to the injury was not established, the court of appeal violated Articles 1315 and 1147 of the Civil Code; 2 / that the obligation to issue the seller has an obligation accessory information and advice, in dismissing Mr. Couturier Switzerland and the company of their claims for damages caused by the explosion of the stove gas sold by the company Darty, without seeking, as requested findings of appeal, if that company and its subcontractor had attracted the attention of the user on precautions for use of equipment, the appellate court’s decision deprived of any legal basis under Article 1147 of the Civil Code; But wait, first, that the strict liability burden on the seller-installer does not extend to damage caused by the breach of its obligation of result , it was incumbent, therefore, to Mr. Couturier and his insurer to demonstrate that the explosion had originated from the provision made, in this case, based on the expert report, the Court of Appeal held that there were only assumptions about the accountability of the damage that could come either from a faulty installation performed by the company or Mr. Thiebaud Couturier Lyonnet or Miss, or a subsequent amendment of the installation by Mr. or Ms. Couturier Lyonnet, that these grounds alone on the plurality of hypothetical causes, the Court of Appeal legally justified its decision; Whereas, on the other hand, Mr. Couturier and his insurer solely having based their action for damages for breach of the seller-installer in its obligation to security, the Court of Appeal did not have to search through invoked; Hence it follows that any of its branches, the appeal is unfounded; FOR THESE REASONS: Dismiss the appeal; Condemns the Swiss company and Mr. Couturier accident costs; Having regard to Article 700 of the new Code of Civil Procedure, rejected the request of the company Darty Rhone-Alps; On the report of Ms. Benas, counselor, the observations of Me Nervo, the Swiss company lawyer accidents and M. Couturier, CPS Defrénois and Levis, counsel for the company Darty Rhone-Alpes, the conclusions of Mr. St. Rose, General Counsel; Lemontey Mr. President. |
case 53
| Supreme Court of Appeal Civil Division 3
FRENCH REPUBLIC On appeal by the French construction group company, limited liability company, formerly known as Mistral work, which is based in ZA Pile, 13760 Saint-Cannat, to quash a decision of 24 June 1999 by the Court of Appeal of Aix-en-Provence (3rd Civil Chamber), for: 1 / the condominium residence Le Verger, Golfe Juan, with its headquarters town of Vallauris, the Gazelle Avenue, 06220 Golfe Juan, 2 / by Jacques Saez, designated as agent for ad hoc to represent SCI Le Verger, remaining 2, avenue Marceau, 75008 Paris, 3 / company Nice tight, headquartered 34, boulevard Carnot, 06000 Nice, 4 / Technic Company work, which is based industrial zone of the Pre Catelan, 06410 Biot, 5 / by Michel Arnaud, taken in his capacity as liquidator of the company Technic sealing work, remaining 2, avenue Aristide Briand, 06600 Antibes, 6 / company SOCOM, headquartered 19 Avenue Auguste Renoir, 06800 Cagnes-sur-Mer, 7 / company Tec Mediterranean, limited liability company, whose head is 32, avenue Saint-Barthelemy, 06000 Nice, 8 / by Pierre Donnet, remaining 6, avenue de l’Hôpital, 06220 Vallauris, 9 / business plumbing heating “Sanit Casino”, whose headquarters are 4, avenue du Casino, 06220 Golfe Juan, 10 / Mr. Isidore Compagnoni, remaining 52/54, route of penetration, Maramu, 06800 Cagnes-sur-Mer, 11 / Mr. George Peltier, in his capacity as court-appointed liquidator, remaining 3, rue de Massingy, 06000 Nice, 12 / company Polycom Mediterranean, headquartered 70, route de Grenoble, 06000 Nice, 13 / the insurance company Drouot, whose headquarters are 1, place Victorien Sardou, 78161 Marly-le-Roi, the rights of which is the company Axa insurance 14 / Socotec company, headquartered 33, avenue du Maine, Tour Maine Montparnasse, 75015 Paris, defendants to appeal; Axa insurance company formed by a brief filed in the office July 12, 2000, caused an appeal; Mr. Donnet formed by a brief filed in the office July 21, 2000, caused an appeal; The French construction group company, the plaintiff in the main appeal, relies in support of its application, two grounds of appeal annexed to this Order; Axa Insurance Company, the plaintiff in appeal caused, invokes in support of its application, a unique way of appeal annexed to this Order; Mr. Donnet, caused plaintiff to appeal, relies in support of its application, a unique way of appeal annexed to this Order; THE COURT, in the public hearing on January 29, 2002, which were present: Weber, President, Fossaert-Sabatier, Commissioner of the rapporteur, Ms Fossereau, MM. Way, Villien, Cachelot, Martin, Mrs. Lardet, Gabet, counselors, Ms. Boulanger, Nesi, M. Jacques, counselors referendum, Mr. Guerin, General Counsel, Ms. Berdeaux, Clerk of room; On the report of Ms. Fossaert-Sabatier, Commissioner of the observations of SCP and Piwnica Molinié, lawyer of Groupe French construction, Me Balat, lawyer condominium residence Le Verger, Golfe Juan, the SCP Masse-Dessen, George and Thouvenin, counsel for Mr. Donnet, Me Odent, counsel for the company Nice tight, CPS and Rouvière Boutet, counsel for the company Axa Insurance, in law to the insurance company Drouot, the conclusions of M. Guerin, General Counsel, and after deliberating in accordance with law; The first main ground of appeal, the following appended: Whereas, having held that sovereign disorders cracking of facades, affecting the heavy work, were such as to make buildings unfit for use and were not apparent upon receipt, the Court of Appeal, which said findings, is legally justified its decision; The second main ground of appeal, the following appended: Whereas, having held that the company Mistral was in pursuance of its market, store or transplant trees, or, if not possible, notify the Owner, it had not, and was not justified in a case of force majeure and in particular the occurrence of frost before receipt of the property, the Court of Appeal, who responded to the findings, a legally justified its decision to this head; But the single plea in law caused the company Axa Insurance: Having regard to Article 455 of the new Code of Civil Procedure; Whereas, according to the judgment (Aix-en-Provence, June 24, 1999) that the real estate company Orchards (SCI), provided by the company Groupe Drouot rights which is the Axa insurance company, had built a building for residential use under the project management of M. Donnet, architect, the company Mistral work (Mistral) became French construction group, as all trades contractor, upon receipt, the union of co-owners of the residence Le Verger has assigned the SCI and the manufacturers for repair disorders and the damage caused by the disappearance of orange which the building permit provided for the conservation, or failing that, the replacement; Whereas in condemning the company Groupe Drouot, with the SCI, to compensate owners for damage related to the disappearance of trees, stopping notes that Article 6 of the general conditions of the liability policy provides that the guarantee promoter s’ applied to the financial consequences of liability falling upon the insured because of damages caused to third parties directly qu’entraînent faults errors of fact or law, oversights, omissions, inaccuracies or omissions, breach of procedures or deadlines imposed by the law or regulation, that these facts come from himself or his servants, provided they are produced in the acts of his profession promoter; And that acting without responding to the findings of the insurance company arguing that the police did not guarantee the financial consequences of the liability of the insured “because of the nonconformity of the structure with the design specifications or the document attached to the sales contract or preliminary contract, “the court of appeal did not meet the requirements of this text; And the unique way the appeal brought by Mr. Donnet:Having regard to Article 1147 of the Civil Code; Whereas in condemning Mr. Donnet to ensure the SCI of the conviction to repair the damage arose from the disappearance of the orange stop holds that Pierre Donnet, who had been on a mission of project management involving the study and the development of the project and the management, supervision and approval of work, could ignore the less the loss of 156 trees and the violation of the building permit he had sold the land to the SCI, that it has engaged its contractual liability for failing to draw attention to this subject, particularly when receiving; That while acting as an obligation to counsel does not apply to facts which are known to all , the Court of Appeal violated the text referred to above; FOR THESE REASONS: Quashed, but only in that it ordered the company Drouot Group with the SCI, to pay the condominium residence Le Verger the sum of 1,411,020 francs taxes, the decision of June 24, 1999, between the parties, the Court of Appeal of Aix-en-Provence; shall, therefore, as to what the cause and the parties in the state they were before the judgment and to be granted, the refers to the Court of Appeal of Montpellier;
Society condemns French construction group at the expense of appeals;
Having regard to Article 700 of the new Code of Civil Procedure, rejected the demands of co-owners of the residence Le Verger, Golfe Juan, Nice tight company and Mr. Donnet;
Said that the audit of the Attorney General at the Court of Cassation, the above will be sent to be transcribed in the margin or as a result of the partially broken off;
Well done and tried by the Court of Cassation, Third Civil Chamber, and pronounced by the President in a public hearing on 6 March two thousand and two.
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case 52
Supreme Court Commercial Division
FRENCH REPUBLIC
Having regard to Article 1840 A of the General Tax Code;
Whereas what null and void any unilateral promise of sale relating to a building, unless it is proven by an authentic act or by act under private signature recorded in the period of ten days from the date of acceptance by the beneficiary;
Whereas, according to the judgment by private deed of 30 December 1986 archives Societe Generale (SGA) has sold a business to the LLC Backup Information (SI) that the sale does not include no assignment of lease rights, the parties entered into a sublease of the premises in which the fund was operated, and were included in a property subject to a lease agreement between the SGA and Pretabail Sicomi and that by letter dated March 4, 1987, the USG has committed to sell to the SI and the local sub-let, if she raised the option to purchase real estate, and that this commitment was reiterated in two protocols Agreement dated December 18, 1987 and March 28, 1990, the latter including also the signing of a commercial lease in favor of the SI pending the completion of the sale of the property pledged by the SGA, which was in interval acquired it from SICOM, that relying upon the non respect of these MOUs, the ID assigned to the SGA Commercial Court of Chartres in compensation for his injury, that by order of November 7, 1995 The Court ruled that the Memorandum of Understanding of March 28, 1990 was a unilateral promise to sell, a void on the grounds that he was not satisfied the requirements of section 1840 A of the General Code taxes, noted the lapse of the commercial lease it considered therefore moot, and ordered the SI to vacate the premises previously rented within a certain time, the SI has appealed that decision;
Whereas to overturn it, the appellate court, after noting that it followed the provisions of Article 2 of the Protocol of 28 March 1990 that the USG was forced to sell the property in question, including content and price were identified and determinable, while SI had meanwhile no commitments to acquire the property, held that the sale agreement was therefore unilateral, but stated that it contained in an agreement with a set of reciprocal contractual obligations were not subject to the formality of registration required by section 1840 A of the Tax Code;
But given that by identifying and, without looking if there was an arm’s length needed between these reciprocal obligations may alter the characteristics of the sales agreement, the Court of Appeal gave no legal basis its decision;
For these reasons, and without any need to rule on the first part of the plea:
Quashed, in all its provisions, the decision of November 12, 1998, between the parties, the Court of Appeal of Versailles shall, therefore, the cause and the parties in the state they were before said stop, and to be granted, the returns to the Court of Appeal of Paris.
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case 51
THE COURT OF APPEALS, FIRST CIVIL DIVISION. Limited training.
July 3, 2001. Decision No. 1250. Rejection.
Appeal No. 99-15412.
On the appeal brought by the company Alcatel GST, which is based 84 Street steels, 42950 Saint-Etienne Cedex 09,
to quash a decision of 18 March 1999 by the Court of Appeal of Lyon (1st Civil Chamber), for:
1 ° / of the family association Externat Sainte-Marie, whose head is 4, Montee Saint-Barthelemy, 69321 Lyon Cedex 05,
2 ° / Françoise Lonne, in his capacity as liquidator of the company proxy Start computer domiciled 122 Street Cross Seguey, 33000 Bordeaux,
defendants to appeal;
The plaintiff relies in support of its appeal, the sole means of appeal annexed to this Order;
Medium produced by Me COSSA, lawyer for the company GST Tips for Alcatel
He is accused of the judgment HAVE rejected the company GST ALCATEL of all its applications;
The grounds that it appears from the evidence into the debate that the Association CLERKSHIP SAINTE-MARIE family commissioned the company ALCATEL GST and society COMPUTER START an IT package to manage its magnetic card from the school canteen entry in September 1991 that the command could not be met due to difficulties in adapting to the existing computer system, as solutions were sought in vain until December 1993 that the company has ALCATEL GST fulfilled its obligation not to information and advice nor the obligation to deliver if it could make available Clerkship SAINTE-MARIE controlled system which should be operational in September 1991 that since the Association family CLERKSHIP SAINTE-MARIE is entitled to rely on the exceptio to evade the payment of invoices submitted by the company ALCATEL GST;
THEN the one hand that the trial court may modify the terms of the dispute, that in this case for refusing to pay the bills of the company ALCATEL GST, the Association CLERKSHIP SAINTE-MARIE family claimed that it had missed the one hand, its obligation to provide advice and analysis on the other hand, his obligation to deliver and that, therefore, retaining, to say that well-founded association to invoke the exception of failure, a failure by the company GST ALCATEL its duty of information, the Court of Appeal violated Article 4 of the new Code of Civil Procedure;
THEN ON THE OTHER HAND THAT the judge must at all times, observe and enforce itself the principle of contradiction, that in this case by raising the plea of office of a default by the company GST ALCATEL its obligation of information without having first invited the parties to explain himself, the Court of Appeal violated Article 16 of the new Code of Civil Procedure;
THEN FURTHER THAT the judge can not waive a party to a contract from the obligation to pay the agreed price of the service contract if evidence of a breach by the other party of its obligations serious enough to warrant the exception of failure, in this case, to exempt the family CLERKSHIP Association SAINTE-MARIE – who had commanded the company GST ALCATEL a management information system for school meal contract that had been expected that he would be, from society COMPUTER START, a necessary adaptation to make it operational as a function of equipment with the association – from its obligation to pay the bills of the company ALCATEL GST, the Court of Appeal has merely stated that it had breached its duty of information and advice, without specifying what information in any way or what advice would have failed, that acting in this way, it has deprived its decision of legal basis under Article 1184 of the Civil Code;
Then at last they can not be criticized for not having a vendor satisfied its obligation to deliver when it comes to the matter agreed to be operational, required an adaptation of an act attributable to the buyer, in this case, the company GST ALCATEL argued in its conclusions call it undertook to deliver to the Family Association CLERKSHIP SAINTE-MARIE a system to become operational depending on the hardware equipping the association, was to be an adaptation called porting the association was entrusted to the company START COMPUTER; that, therefore, claiming that the company ALCATEL GST had failed in its obligation to deliver, in the absence of have delivered a system in working order, without conclusive answer to the head of the aforementioned conclusions of the latter, the Court of Appeal violated Article 455 of the new Code of Civil Procedure.
THE COURT
The unique way, made its first two branches:
Whereas the judgment (Lyon, March 18, 1999) has rejected the company GST Alcatel (society), vendor of a computer system, its claim for payment of invoices issued against the association buying Externat St. Mary (clerkship) that the company accused him of having acted well when in motion under a misunderstanding by the seller of its obligation to inform the court of appeal would, by this addition to the failure the obligation to provide advice and analysis, only terminated by clerkship, changed the terms of the dispute and, by failing to invite the parties to explain previously, violated Article 16 of the Code;
But whereas the duty to advise the seller of property extends to the complex information of the buyer as to the feasibility of interventions for their commissioning and about the time required by them, that the Court of Appeal , noting that the computer system controlled by the day school in June 1993 to be adapted to existing equipment at home in September 1991, had never been made compatible, or at the time agreed or later, legally justified its decision;
And over the last two branches:
Whereas it is still criticized for the decision to leave without affecting the contract preparation of the intervention of a company computer to Start the necessary adaptation of the thing acquired computer equipment already in place in the premises of the clerkship , and thus to be no legal basis under Article 1184 of the Civil Code by not saying what the company failed in its obligation to provide information and advice, and finally, in that it criticizes to it the non-fulfillment of its obligation to issue, violating Article 455 of the new Code of Civil Procedure;
But wait, first, that the obligation to inform and advice the seller is not outweighed by any failure of third party installer, while the other, its obligation to deliver is fully executed performed once the effective development of the thing sold , from which it follows that the complaints are unfounded;
FOR THESE REASONS:
Dismiss the appeal;
Condemns the company Alcatel GST expense;
On the report of Mr. Gridel, counselor, observations of Mr. Cossa, a lawyer for the company GST Alcatel, the conclusions of M. Sainte-Rose, General Counsel; Lemontey Mr. President.
case 50
Supreme Court of Appeal
Civil Division 3
| Public hearing on November 13, 2003 | Rejection |
Appeal No.: 00-22309
Published in the Newsletter Chair: Mr. WEBER
FRENCH REPUBLIC
ON BEHALF OF THE FRENCH PEOPLE
ON BEHALF OF THE FRENCH PEOPLE
THE COURT OF APPEALS, THIRD CIVIL DIVISION, made the following ruling:
Whereas, according to the judgment (Paris, September 27, 2000), the spouses X. .. have acquired MY .., realtor, a dwelling house which presented serious disorders due to defects in the structure and coverage, they have assigned Y. .. payment of the cost of repairs and damages;
that it sought the guarantee of its professional liability insurer, insurance mutuals Seine-et-Marne (MSM);
The first plea:
Whereas Y. .. complains that the decision to sentence him to pay damages to the husband X. .. then by type:
1) that under Article 1645 of the Civil Code, only the seller is required to know the defects of the thing, is obligated to pay the buyer damages in excess of the price received, as The realtor, real estate professional, is not required to know the defects in design and implementation of the structure and coverage of a building whose construction he has not himself participated and he has acquired by auction, which limits the investigation;
that merely note that Y. .. had sold a dwelling house the couple X. .. in his capacity as a property trader, the Court of Appeal concluded that he could not ignore the defects of the thing sold which he had to verify the status, but has failed to find disorders that the expert was described as difficult to detect, deprived of legal basis for its decision under the above provision;
2) that Y. .. that acquired by public auction June 25, 1993 the house sold April 8, 1994 the couple X. .., and, failing that, for him to be able, for a specific skill in carpentry, identify disorders affecting the roof as the body designated by the prospective purchaser had not identified himself, and failing that, again, for him to have inhabited the site personally and know them well, could not, in consideration of simply as a realtor that is not enough to have a technical skill than that of the agency required by the prospective purchaser, be ordered to pay damages – NTEREST, in the deciding However, the Court of Appeal violated Article 1645 Civil Code;
But given that having found that MY .. who is a realtor and had treated as such with the X. .. husband, the Court of Appeal, which was not required to conduct a research findings made inoperative and n ‘ was not requested, and concluded, correctly, that he could not, as a realtor, claim ignorance of the vices of the thing sold and had to compensate buyers for the damage which had resulted;
Hence it follows that the appeal is unfounded;
The second plea:
Whereas Y. .. complains that the decision to dismiss its warranty claim filed against the MSM for the conviction against him for the cost of repairing the property sold, then, by type:
1) that Y. .. argued in its submissions before the Court of Appeal, that the MSM had written to the insurance agent that she accepted his guarantee, that Y. .. produced a letter from the MSM, 28 April 1995 by which the insurer said: “After review of the contract,” accepts the guarantee in this case, in dismissing Y. .. its warranty claim made against its insurer, without explaining what he means followed that the MSM was committed to ensuring Y. .. for the loss in question, the Court of Appeal disregarded the requirements of section 455 of the Code of Civil Procedure;
2) the insurer reporting to Y. .. during the formation of the contract be “able to provide professional liability for all operations of purchase, sale, exchange, and all transactions emerging from the profession of realtor … only not included in this insurance under this policy the transactions subject to compulsory insurance of ten entrepreneurs or damage to the book “, the Court of Appeal, which found that Y. .. was treated as a realtor selling the property in question and, as such, he must know about the defects of the thing he had to verify the state, had to admit that the insurer ‘s was excluded from the guarantee that the insurance obligation ten contractors or damage to the structure, was required to cover the insured in respect of latent defects of the thing sold, in releasing its obligations to MSM guarantee, the Court of Appeal violated Article 1134 of the Civil Code;
3) that Y. .. having trained with the MSM called an insurance general liability to which are added custom conditions and special conditions setting out, without exclusion, the insured in respect of professional liability, is guaranteed “when engages or participates in transactions for the purchase, sale, exchange, lease, etc … “ the appellate court could not ignore the special conditions of the insurance policy and hold that section 2-7-44 of the general conditions of the policy excluded the warranty of the insurer for a full refund of the products, supplies, materials or equipment sold and for all costs involved in their rehabilitation; in so ruling and being determined by a clause of general conditions of the insurance policy that the special conditions negotiated between the parties, for s adapt to the nature of the activity of the insured had rejected the Court of Appeal violated Article 1134 of the Civil Code;
But having waited selected, correctly, that the conviction against Y. .. for the cost of repair of the building was not grounded in the rules of tort, contract or tort, but in the specific legal obligation to the seller to guarantee the purchaser against hidden defects of the thing sold, and having found that Section 1 “conditions customized” police “business casualty” signed by Y. .. guarantee it against the financial consequences of civil liability that might incur in the exercise of his professional activity because of the intangible damage caused to others, because of errors, omissions or negligence, the Court of Appeal , which was not required to conduct research on the contents of a letter on its findings that the police made inoperative, was able to deduce that the conviction that the guarantee was sought was foreign to the purpose of the insurance with the MSM;
Hence it follows that the appeal is unfounded;
FOR THESE REASONS:
Dismiss the appeal;
Condemns MY .. the expense;
Having regard to Article 700 of the new Code of Civil Procedure, condemns MY .. payable to Mutual of Seine-et-Marne, whose rights the company has regional mutual insurance, the sum of 1900 euros;
Well done and tried by the Court of Cassation, Third Civil Chamber, and pronounced by the President in a public hearing on 13 November two thousand and three.
Contested decision: Court of Appeal of Paris (19th Civil Division A) 2000-09-27
case 49
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Decision No.: 2000/05210
COMPOSITION OF THE COURT |
case 48
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THE COURT OF APPEALS, THIRD CIVIL DIVISION. Training section. January 31, 2001. Decision No. 187. Partial Cassation. Appeal No. 97-16814. On the appeal brought by the estate management company Clichy-Wattignies (Igcw), headquartered 24, rue Saint-Antoine, 75004 Paris, to quash a decision of 30 May 1997 by the Court of Appeal of Paris (16th Chamber, Section B), for: 1 / the Union of co-owners of the building at 13 rue de Clichy, 75009 Paris , represented by its trustee company Property Paris-Nord, whose head is 4, rue du Lieutenant Colonel Deport, 75016 Paris, 2 ° / of the French Society of Management Studies and investment (sofregit), limited liability company, whose headquarters is 13, rue de Clichy, 75009 Paris, defendants to appeal; The plaintiff relies in support of its appeal, the four grounds of appeal annexed to this Order; Means products appeal No. 97-16814 E by CPC Waquet, Farge and Hazan, a lawyer for Tips Real Estate management company Clichy-Wattignies (IGCW). FIRST grounds of appeal: IT complains that the decision invalidating attacked HAVE ordered the termination, the wrongs of society IGCW, lease of 16 April 1984, and that with effect from October 20, 1994, date of assignment, The grounds that it can not be criticized for the company sofregit of trying to exploit one of the activities authorized by the lease more completely than did the previous tenant, it had no obligation to use the funds as it had been transferred, and vis-à-vis the landlord’s only obligations were not to exceed the intended contractual obligation to the leased premises in the state in which they are , to comply with laws, and the statement that the tenant has taken all necessary information in order to have the right to practice in the rented premises specified in the lease can not be applied unless there has been issuance one thing in accordance with contractual specifications; a rented space for a restaurant business must have all basic amenities to allow this activity, physically and legally, in praising the local use restoration without being equipped with air duct required by regulation, the company IGCW has not fulfilled the obligations imposed upon it by section 1719 of the Civil Code, that the fact that the tenant may have about the defect can not erase the fact that the thing could be brought into line, that the lessor has failed in its obligation to deliver, it is therefore necessary to terminate on the date of the summons; Then, firstly, that acting in this way, disregarding whether the stipulation in the lease of the restaurant business, not a restaurant, and what with those of tea, sales of herbs and natural products, gifts, crafts and art gallery, did not show that, with the intention of the parties to lease the restaurant business should be understood as an accessory light restoration does not require the installation of a duct ventilation, the Court of Appeals denied his decision as a legal basis under Article 1134 of the Civil Code; THEN ON THE OTHER HAND, THAT the lease expressly put the tenant’s obligation to comply with laws and that, moreover, the tenant, a real estate professional and had rented the premises in knowledge case, claimed to have previously taken all necessary information for the right to practice in places, so that the lease the lessor discharged from any obligation to deliver on administrative authorizations necessary for the performance of the business of restaurant , thus stopping the attack violated Article 1134 of the Civil Code; THEN, finally, that the issuance of the termination of a lease that takes effect the day of the court, the appellate judge who decides on the issuance of the termination of a lease must assess the situation on the day of its decision that the company IGCW argued that, by general meeting of October 5, 1995, co-owners had authorized the installation of a ventilation duct, so the restaurant business could be conducted; in determining the date of termination on the date of the summons, and refusing to consider approval of the condominium to install a ventilation duct, obtained after the assignment, but before the ruling, the Court of Appeals violated Article 1741 of the Civil Code and 561 of the New Code of Civil Procedure. SECOND grounds of appeal: IT complains that the decision invalidating attacked for saying that the cancellation will take effect October 20, 1994, date of assignment, and have therefore limited the conviction of the company sofregit in respect of rent arrears to only rent due until that date, REASONS TO no rent can be claimed after the date of termination of the lease; WHILE the issuance of the termination of a lease takes effect the day of the court, thus the judgment violated Articles 1741 of the Civil Code and 561 of the New Code of Civil Procedure. THIRD grounds of appeal: IT complains that the decision invalidating attacked for saying that the company sofregit is entitled to claim compensation for damage caused by the failure to deliver the thing, and as a result of ordering an expert on interlocutory the amount of such compensation, The grounds that the company sofregit seeks compensation for the damage on the basis of Article 1721 of the Civil Code relating to faults or defects of the thing and repair the resulting loss, citing the loss of his funds, however, that the damage does not result in the outright loss of funds but rather the inability to turn it into a restaurant, in fact the tenant could take over the activity of light meals as exercised before, or exercise the activities authorized by contract, that the damage is therefore limited to the loss of an opportunity to extend the previous operation; THEN, ON THE ONE HAND, as a result, the provisions of the lease under which the tenant claims to have taken all the information needed to practice his profession in the rented premises, an exception to the warranty by the landlord of the defects of the thing leased when the vice preventing the use of the leased premises consists of an administrative requirement, thus the decision under appeal, which has the responsibility of the landlord compensation for alleged damage resulting from the administrative requirements for the operation a restaurant, violated Article 1134 of the Civil Code; THEN ON THE OTHER HAND, the lessor is not liable for defects that the tenant knew or must have known, that in acting this way after admitting that, as argued IGCW society, the lessee, which is realtor who visited the site before the lease, knew perfectly well that they were not equipped with ventilation duct required by the Authority for the proposed restaurant activity, the Court of Appeals violated Article 1721 of the Civil Code; SO, again, that, acting in this way without even characterize the fault of the lessor who, on the contrary, has multiplied the proceedings against the condo to get permission to install the ductwork required by the Administration, the Court of Appeals denied his decision as a legal basis under Article 1147 of the Civil Code; THEN, finally, that the approval of the condominium to install a ventilation duct was, as argued the lessor, obtained in October 1995, before shutting down, when the situation should be assessed, the company sofregit , which at that time could still proceed with the operation of a restaurant, has lost no chance to extend the operation earlier, and did not suffer any loss resulting from a defect in the rented, but preferred to give up the lease and can not claim compensation for damage would have resulted for her the judgment thus violated Articles 561 of the New Code of Civil Procedure, 1721 and 1147 of the Civil Code. FOURTH grounds of appeal: IT complains that the decision invalidating attacked HAVE IGCW rejected the company’s warranty claim against the condominium of 13, rue de Clichy, The grounds that it appears from the evidence provided to discussions, including the minutes of general meeting and the reasons for the decision of October 12, 1994, until that date at least IGCW the company had at no time provided precise description of the work that needed to be given permission effective, whether from the condominium or a judicial authority that, under these circumstances, the refusal of the union had no fault; THEN, ON THE ONE HAND, THAT the co-ownership has never justified its refusal to allow the installation of the exhaust duct by the lack of production of detailed estimate of the work; it to first decided to ban the restaurant business in the building, and postponed its decision on the removal of odors, pending a meeting organized by the trustee on the scene with an expert, and then refused authorization sought after canceling the first resolution, arguing that the small courtyard in which the sheath had to pass is the property owners; that, therefore, based, to exclude wrongful refusal of the union, on the fact that ineffective IGCW society has not produced detailed estimate, the Court of Appeal violated Article 1382 of the Civil Code; THEN ON THE OTHER HAND, THAT the union, by refusing to allow the offending work required by the Administration forced the company to enter the IGCW judge of a judicial authorization, not to escape compensation for the harmful consequences of his fault, take advantage of the fact that the company has not IGCW, for the judicial authorization, produced before the judge detailed estimate, in deciding the contrary, the Court of Appeals violated Article 1382 of the Civil Code; THEN, finally, that the decision of 12 October 1994 had to cancel the resolution of the general meeting of owners, was found to constitute an abuse of majority and that, excluding the fault and definitely characterized by the union the decision cited above, the Court of Appeal disregarded the authority of res judicata by the decision, in violation of section 1351 of the Civil Code. THE COURT The first plea, made its first two branches and the third way, meeting: Whereas, having found that he could be criticized for the company sofregit of trying to exploit one of the activities authorized by this lease more completely than did the previous tenant, and that, notwithstanding the provision that the requirement for tenant to the premises in the state and comply with laws governing the exercise of its commerce, the lessor was required to deliver the leased premises for a restaurant business with all the amenities for to exercise This activity physically and legally, the Court of Appeal decided, rightly, that the inability to put the local in accordance with the laws characterized a failure of society Igcw its obligation to issue and justify the termination of lease to be delivered at his wrongs; Hence it follows that the appeal is unfounded; The fourth plea, the following appended: Whereas, having held that the company had at no time Igcw provided the description of the work that needed to be given permission, whether from the condominium or a judicial authority, the Court of Appeal, these grounds alone, without violating the rule of res judicata, legally justified its decision on that ground; But on the first ground of appeal, taken in its third branch: Having regard to Articles 1741 and 1184 of the Civil Code; Whereas, according to the judgment (Paris, May 30, 1997), the company estate management Wattignies Clichy (Igcw) was leased to Ms. Duboc, human rights, which is the French Society of Management Studies and investment (sofregit) premises located in a condominium for use as food, tea, sales of herbs and natural products, gifts, crafts and art gallery in September 1994, the restaurant operated in the premises by the company sofregit has been an administrative closure to install a vent line with the regulations and that, not having obtained permission to install this equipment, the tenant has assigned the lessor to terminate the lease and compensation for damages; Whereas the Court of Appeal declared the termination of the lease to the damage of the lessor at the date of the assignment, or October 20, 1994; That in so holding, while the termination of a lease is not effective the date of the decision pronounced, the Court of Appeal violated the above documents; FOR THESE REASONS, and without any need to rule on the second plea: Quashed, but only in that it has set October 20, 1994 effective date of termination of the lease and ordered the company to pay sofregit society Igcw the $ 161,564, 07 francs for rent and expenses due to the October 20, 1994, the decision of May 30, 1997, between the parties, the Court of Appeal of Paris shall, therefore, as to what the cause and the parties in the state where they were before the judgment and to be granted, the returns to the Court of Appeal of Versailles; Gives each party the burden of its costs; Having regard to Article 700 of the new Code of Civil Procedure, rejected the demands of the condominium of 13, rue de Clichy, 75009 Paris sofregit and society; Said that the audit of the Attorney General at the Court of Cassation, the above will be sent to be transcribed in the margin or as a result of the partially broken off; On the report of Mr. Betoulle, Commissioner of the observations of SCP Waquet, Farge and Hazan, lawyer for the estate management company Wattignies Clichy (Igcw) of Me Nervo, lawyer of the French Society of Management Studies and investment (sofregit) of Me White, counsel for the co-owners of the building at 13 rue de Clichy, 75009 Paris, represented by its trustee company Property Paris-Nord, the conclusions of Mr. Baechlin, lawyer General, Mr. BEAUVOIS, President. |
case 47
SALE OF A DWELLING HOUSE
Estimatory ACTION ON THE BASIS OF VICE CACHE
Supreme Court of Appeal
Civil Division 3
| Public hearing on September 27, 2000 | Rejection |
Appeal No.: 99-10297
titled Unreleased
FRENCH REPUBLIC
ON BEHALF OF THE FRENCH PEOPLE
ON BEHALF OF THE FRENCH PEOPLE
THE COURT OF APPEALS, THIRD CIVIL DIVISION, made the following ruling:
On appeal by:
1 / Joseph M. Vignolo,
2 / Corneoli Mrs. Charlotte, wife Vignolo,
The remaining both Joloreil, Domaine des Pins, route of Ciappa Castelane, 06500 Menton,
to quash a decision of 9 November 1998 by the Court of Appeal of Lyon (1 and 2 bedrooms) for the benefit of the real estate company (SCI) LIFL, civil society Monaco, headquartered Le Grand Large, Santarlani dock, 98000 Monaco (Principality of Monaco)
defendant to appeal;
The plaintiffs cite in support of their appeal, three grounds of appeal annexed to this Order;
THE COURT, in the public hearing on July 4, 2000, which were present: Miss Fossereau, senior adviser acting for the President, Mr. Villien, reporting judge, MM. Way, Cachelot, Martin, Ms. Lardet, counselors, Ms. Masson-Daum, Fossaert-Sabatier, Boulanger, counselors referendum, Mr. Guerin, General Counsel, Ms. Jacomy, Clerk of room;
On the report of Mr. Villien, counselor, observations of SCP Masse-Dessen, George and Thouvenin, lawyer husband Vignolo, of Mr. Cossa, a lawyer for the real estate company LIFL, the conclusions of M. Guerin, General Counsel, and after deliberating in accordance with law;
The first plea:
Whereas, according to the judgment (Lyon, November 9, 1998), after giving a preliminary Appeal (Civ. 3, January 15, 1997, No. 46 D), the real estate company LIFL (SCI), April 6, 1989 acquired spouse Vignolo a dwelling house that they had built and that the disorders were discovered after the sale, the buyer sued the seller for damages for his loss;
Whereas the spouses Vignolo criticize the decision to host this application on the basis of the warranty against latent defects, then, in a way, “the judge must decide the case according to the rules of law that are applicable in failing to consider whether, as the couple argued Vignolo, the responsibility of sellers could not be sought solely on the basis of the manufacturers warranty, which was prescribed, the subpoena was issued more than ten years after receipt of the work, inoperative for reasons that the purchaser had waived the application of the legal guarantee for manufacturers not base its action on the warranty against latent defects, and that there is uncertainty about the date Opening the site, the Court of Appeal violated Article 12 of the new Code of Civil Procedure, all items 2270 and 1792 of the Civil Code in their amended by the Act of January 3, 1967 “;
But having found that the expected reporting date the site was uncertain, the Court of Appeal, which had before conclusions spouse Vignolo, placing the matter on the sole ground of Article 1641 of the Civil Code was not required to consider whether the observed disorder could meet the legal guarantee of the manufacturers ;
Hence it follows that the appeal is unfounded;
The second plea:
Whereas the spouses Vignolo criticize the decision to condemn them to the cost of repairing the roof, then, in a way, “1 / it is for the buyer who has the action to establish estimatory the existence of a latent defect inherent in the thing prior or contemporaneous sale; that based solely on technical advice and sayings contained in an expert report, which was common ground that it was not contradictory, and by requiring sellers to prove otherwise, including the production of technical documents, the Court of Appeal reversed the burden of proof in violation of section 1315 of the Civil Code, 2 / guarantee hidden defects implies the existence of a defect prior to sale, in endorsing the conclusions of the expert irrespective of whether the absence of condensation during the ten years preceding the sale, confirmed by numerous testimonies-n establishment not-especially when, as the purchaser himself pointed out, the phenomenon should have necessarily (sic) occur from the time the couple owned Vignolo, the absence of latent defects due to a so- saying failure to act in the roof, the appellate court’s decision deprived of legal basis under Article 1641 of the Civil Code, 3 / that the judge can rule by way of affirmations stating that peremptorily would have been inoperative for many certifications made by the spouses in discussions Vignolo, without any analysis, even briefly, the documents which were submitted and the Court of Appeal disregarded the requirements of section 455 of the new Code of Civil Procedure “;
But having waited statement, enjoying sovereign coins submitted to it, that the findings of the expert, on the presence of traces of condensation in the rooms, and water in the panels of glass wool cover , from any failure of performance of the roof not visible in the purchase of the villa, and the bailiff of Justice of 24 January 1990, established the existence of a latent defect affecting the property sold and reducing its use as the cover was not insured certificates of neighbors or real estate agents are ineffective in this respect, the Court of Appeal, which was based on the report of an expert legal operations Vignolo which the husband had been called, and another document contradictorily debated, and was not required to conduct a research findings made inoperative, or analyze the evidence that she decided to dismiss, could remember, without reversing the burden of proof, that the action estimatory brought by the SCI should be allowed;
Hence it follows that the appeal is unfounded;
The third plea:
Whereas the spouses Vignolo criticize the decision to remove the non-warranty against hidden defects inserted in the contract of sale, then, in a way, “1 / that the judge must in all circumstances, respect the principle of contradiction, even when based on a fact that is in debate; that neither the expert nor the parties had argued that situations of work did not include all of the coverage as provided in the project in July 1978, deducting only the quality of a professional seller fact that the parties had not invoked without first inviting them to explain, the Court of Appeal violated Articles 7 and 16 new Code of Civil Procedure, 2 / that judges can grant or deny applications before them without examining all the evidence submitted to them by the parties in support of their claims, stating emphatically that he was not shown that the purchaser would have had the quality of commercial property without considering let alone analyze its statutes and other documents from the special directory of civil societies of the Principality of Monaco concerning him, for the first time, paid to the debate, the Court of Appeal violated Article 1353 of the Civil Code, all the articles 455 and 563 of the new Code of Civil Procedure, 3 / the realtor, a real estate professional is deemed to have the professional seller and that therefore, even if the spouses had been Vignolo regarded as sales professionals, stating that the buyer, assuming realtor, was not a professional in the same specialty, the Court of Appeal violated Article 1643 of the Civil Code “;
But waiting has aving found, analyzing the pieces that were in the debate, including situations of the work done by Mr. Albin, Mr. Vignolo, mason, was a technician of the building that did not establish that the roof has was carried out by another contractor, and supremely noted that the SCI was not a professional in the same specialty, the Court of Appeal, which was not required to conduct a search for quality real estate dealer of this society, its findings made inoperative, was able to deduce, without violating the principle of contradiction, that the disclaimer of warranty did not apply;
Hence it follows that the appeal is unfounded;
FOR THESE REASONS:
Dismiss the appeal;
Vignolo husband condemns the expense;
Having regard to Article 700 of the new Code of Civil Procedure, Vignolo condemns the husband to pay the real estate company LIFL the sum of 12,000 francs;
Having regard to Article 700 of the new Code of Civil Procedure, rejected the request of the spouses Vignolo;
Well done and tried by the Court of Cassation, Third Civil Division, and delivered at the public hearing on September 27 two miles by Miss Fossereau, in accordance with Article 452 of the new Code of Civil Procedure.
Contested decision: Court of Appeal of Lyon (1st and 2nd bedrooms) 1998-11-09
titrations
case 46
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C ass. c iv I, December 12, 2000, Bull No. 324, No. 98-21-789
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Failure to give the company Trouillet body builder, MM. Belat and Picard, respectively representing creditors and administrator of this company, and the company GAN fire accident;
Whereas in April 1992, a semi-trailer transport refrigeration company Exbrayat broke up, the following month, the company and its insurer, the company Helvetia, have assigned emergency expertise in the company Trouillet, manufacturer of semi trailer, the company and its insurer GAN, in January 1993, the expertise has been extended at the request of the company Trouillet, society Debever and Company, manufacturer of some elements, the company and its Exbrayat insurer has assigned to the bottom in June 1994 and all stakeholders, after the bankruptcy of the company Trouillet, said act directly against the company GAN Debever and society, they sought an order in solidum ;
The unique way, made its second branch
Having regard to Article 1648 of the Civil Code;
Whereas the purchaser acting as a guarantee against hidden defects, who summons a seller in a short period provided by the aforesaid order an expert to see, meet the requirements of this text and that’s when the general limitation that runs from the conclusion of the sale;
Whereas, to declare inadmissible as late demand for the company and its insurer Exbrayat against the company and its insurer Trouillet, the judgment notes that the applicants have waited more than two years after the occurrence of the disaster to initiate action Referring to the bottom and that even the starting point of the short notice the day of filing of the report of the expert, July 9, 1993, they have been issued in June 1994 their assignment to the bottom;
By so holding, the Court of Appeal violated the text referred to above;
And the third part of the plea
Having regard to Article 1648 of the Civil Code and Article 125 of the new Code of Civil Procedure;
Whereas the end of inadmissibility resulting from the expiration of the short notice provided by the first of these is not of public order, it follows, under the second, it can be raised by the judge;
Whereas, to declare inadmissible also direct action exerted by the company and its insurer Exbrayat against society Debever, the Court of Appeal accepted automatically that the company and its insurer had acted tardily;
Expected that by thus determining the Court of Appeal violated the above documents; FOR THESE REASONS, and without any need to rule on the first limb
Quashed, in all its provisions, the decision of September 11, 1998, between the parties, the Court of Appeal of Lyon; shall, therefore, the cause and the parties in the state they were before said stop, and to be granted, the returns to the Court of Appeal of Lyon, differently composed.
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case 45
THE COURT OF APPEALS, FIRST CIVIL DIVISION.
June 1, 1999. Decision No. 1060. Cassation.
Appeal No. 97-14165.
CIVIL BULLETIN.
NOTE Thioye, Moussa , Recueil Dalloz Sirey , No. 29 , 31/08/2000 , pp.. 622-624
On appeal by the limited liability company Air France Photo South East, headquartered airport Frescaty Metz, BP 46, 57157 Marly, set aside a ruling March 4, 1997 by the District Court of Chambery the benefit of Mr. Lucien Tripod, remaining 6, Lelia Street, 73000 Bellecombette Jacob, the defendant in cassation;
The plaintiff relies in support of its appeal, the sole means of appeal annexed to this Order;
Medium produced by the CPS and COUTARD MAYER, attorney for Advice for Air France South East Photo.
Grounds of appeal
MADE OF WHAT attacked the ruling ordered the company AIR FRANCE PHOTO pay 1080 F. to Mr. tripod;
The grounds that ‘the provisions of the Consumer Code, whether those relating to distance selling, or those relating to the sale at the doorstep, do not exclude the common law of the sale, yet , a sale if there is perfect agreement on the deal and the price in this case, the agreement on the matter could not be validly given by Mr. Lucien tripod in the presence of the thing since he had previously seen only a trial and an unframed format above or below the photo ordered, yet Lucien tripod immediately announced its refusal to recognize the delivered as one he had commissioned since he returned in a very short time and is therefore entitled to claim back what he paid ‘;
1. While [the existence of the contract] a sale is completed when the parties agree on the deal and the price is apparent in the case of specific statements in the trial that attacked Mr. tripod ordered a photograph AIR FRANCE PHOTO society for an agreed price, and the picture comes back as not being ‘that he had ordered’ (‘corridor of the roof frame and different too massive’) in denying the perfection of sale and the existence of an agreement on the matter ‘, to condemn the seller to refund the price, the court, which has confused existence and proper execution of the sales contract, violated Art. 1582 of the Civil Code;
2. AS [on the contract] to assume that the court has (implicitly) understood to terminate the contract for poor performance, it would have deprived its decision of legal basis under Article 1184 of the Civil Code by failing to find either a non-performance under the contract agreed, nor his character fault, nor the severity of supporting a total annihilation of the Convention.
THE COURT, under Article L. 131-6, paragraph 2 of the Code of Judicial Organisation in the public hearing on April 13, 1999, which were present: Mr. Lemontey, President, Verdun, Commissioner of the rapporteur, Mr Sargos, consultant, Mr. Sainte-Rose, General Counsel, Ms. Collet, Clerk of the Chamber;
Provides default against Mr. Tripod;
Whereas Mr. Tripod commissioned to Air France Photo framed aerial photograph of his property for a price of 1080 francs, payable on delivery, he returned to photography delivered because it was not comply with the order, and has assigned resolution of the seller in the sale for breach of its obligation to deliver;
The first part of the single;
Given the article 1583 of the Civil Code ;
Whereas, according to this text, the sale is perfect between the parties when they agreed to the thing and the thing though the price has not been delivered nor the price paid;
Whereas in condemning the company Air France to return to Photo Tripod M. Price of photography, the judge stated that the meeting of the minds could not properly be formed upon receipt of a photograph by Mr. Tripod, which until there had been a trial and an unframed format different from those ordered;
Whereas in deciding the case, the Court has violated the text above;
The second part of the plea;
See section 1184 of the Civil Code;
Whereas the ruling added that the customer has refused to recognize immediately the delivered as one he had ordered;
By so holding, without specifying what photography delivered differed from that ordered, the Court denied his decision as a legal basis under the above text;
FOR THESE REASONS:
Quashed, in all its provisions, the ruling March 4, 1997, between the parties, the District Court of Chambery; shall, therefore, the cause and the parties in the state they were before the said trial and to be granted, the returns to the District Court of Albertville;
Condemns Mr Tripod expense;
Said that the audit of the Attorney General at the Court of Cassation, the above will be sent to be transcribed in the margin or following the trial off.
On the report of Mrs. Verdun, Commissioner of the observations of SCP Coutard and Mayer, a lawyer of Air France South East Photo, the conclusions of M. Sainte-Rose, General Counsel, and after deliberating in accordance with law M. Lemontey president.
case 44
Supreme Court of Appeal
Civil Division 1
| Public hearing on May 15, 2002 | Rejection |
Appeal No.: 99-19958
titled Unreleased Chairman: Mr. Lemontey
FRENCH REPUBLIC
ON BEHALF OF THE FRENCH PEOPLE
ON BEHALF OF THE FRENCH PEOPLE
THE COURT OF APPEALS, FIRST CIVIL DIVISION, made the following ruling:
On appeal by the Regional Bank Mutual Agricultural (CRCAM) of the Gironde, which is based 304, boulevard du Président Wilson, 33076 Bordeaux, whose rights come CRCAM of Aquitaine,
to quash a decision of 3 August 1999 by the Bordeaux Court of Appeal (Civil Division first, Section A), for:
defendants to appeal;
The plaintiff relies in support of its appeal, the sole means of appeal annexed to this Order;
Given the communication made to the Attorney General;
THE COURT, in the public hearing on March 26, 2002, which were present: Mr. Lemontey, president, Gridel, reporting judge, Mr. Renard-Payen, counselor, Ms. Collet, Clerk of the Chamber;
On the report of Mr. Gridel, counselor, observations of SCP Celica, Blancpain and Soltner, lawyer for the Crédit Agricole Regional Bank Mutual of the Gironde, the CPS Boré, Xavier and boron, lawyer husband of R CPA TIFFREAU, counsel for Ms. Georgevail, the written submissions of Mr. Sainte-Rose, General Counsel, and after deliberating in accordance with law;
Acknowledges the Aquitaine CRCAM its recovery proceedings;
On the sole ground, taken in its five branches:
Whereas the Crédit Agricole Regional Bank of the Gironde mutual (CRCAM) agreed in 1989 to R whose daughter married Andrée Georgevail had a mandate to manage the accounts since 1980, a loan of 90,000 francs in 1992, constituents have revoked the power of attorney and assigned their daughter and her husband for repayment of misappropriated funds by them, they have also sought an order of CRCAM jointly and severally, for restitution of samples occurred under the loan subscribed and paid damages;
Whereas the CRCAM complains that stopping (Bordeaux, August 3, 1999) for hosting the various requests while it violates:
1 / and 2 / Section 1137 of the Civil Code, reproaching him for not having informed the couple Revidat on the burden of the loan while noting that the monthly payments do not exceed one third of their monthly income, and not having dissuaded to subscribe in order to help their daughter and son to acquire a building, criticism and for not having interfered in the affairs of its clients;
3 / Articles 1116, 1137 and 1304 of the Code, skirting a search for Liability Civil acquired extinctive prescription of an action for annulment for fraud;
4 / Articles 1892 and 1137, by exempting spouses Revidat any restitution, despite the persistence of this obligation, inherent in the loan ever be canceled;
5 / 1137 Article yet, taking into account the incentive to join a group insurance not proven useful, given purely incidental to credit and no impact on the suitability or otherwise of credit granted;
But given that the trial court noted the obvious weakness of intellectual husband R and the inability to practice one or the other to measure the extent of their debt, that they were entitled to infer a obligation to provide information and advice reinforced case and that, having observed the total lack of CRCAM, and the spontaneity with which, upon discovery of an incident on behalf of Mr. R had admitted her transfer bond loan of the spouses G. initial deposits, the Court of Appeal was able to retain its share of responsibility initial contract, while she appreciated the terms of sovereign monetary compensation appropriate, from which it follows that the plea is unfounded in all of its branches ;
FOR THESE REASONS:
Dismiss the appeal;
Condemns the Crédit Agricole Regional Bank Mutual Aquitaine expense;
Having regard to Article 700 of the new Code of Civil Procedure, rejected the request of the spouses Revidat;
Well done and tried by the Court of Cassation, First Civil Chamber, and pronounced by the President in a public hearing on 15 May two thousand and two.
Contested decision: Court of Appeal of Bordeaux (1st Civil Chamber, Section A) 1999-08-03
case 43
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Supreme Court of Appeal
FRENCH REPUBLIC See section 1110 of the Civil Code; Whereas at the auction of September 29, 1993 led by Mr. Cornette de Saint Cyr, the auctioneer, Mr. Brossard was awarded the contract to a “trap table” entitled “My Breakfast 1972″ presented to the catalog as the work of Daniel Spoerri, arguing that it was not a work executed by him, but a “work made under license” by a third party, Mr. Brossard requested nullity of the sale to error on the substantial quality; Whereas, to dismiss the buyer’s request, the judgment holds that Daniel Spoerri, who wished to enforce the “trap table” by others, was authenticated, among others, the picture in question so that the well it was an original work of Daniel Spoerri, regardless of whether Mr. Cornette de Saint-Cyr did not specify that the work had been executed “in patent,” and so, Mr. Brossard who wanted to acquire a work This artist has indeed acquired a painting of it did not show that consent was vitiated; Considering that ’acting as it did, but whether, given the references to the catalog, the buyer’s consent was not vitiated by an erroneous conviction and excusable that the work was performed by Daniel Spoerri himself, the Court of Appeal did not give a legal basis for its decision; For these reasons, and without any need to rule on the second part of the first means or the second way: Quashed, in all its provisions, the decision of October 18, 1999, between the parties, the Court of Appeal of Paris shall, therefore, the cause and the parties in the state they were before said stop, and to be granted, the returns to the Court of Appeal of Paris, differently composed.
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case 42
Supreme Court of Appeal Civil Division 3
FRENCH REPUBLIC THE COURT OF APPEALS, THIRD CIVIL DIVISION, made the following ruling: I – The appeal No. 99-18676 V formed by the printing company, limited liability company, headquartered 3, Pioneer went to Aeropostale, 31045 Toulouse, to quash a decision of June 8, 1999 by the Toulouse Court of Appeal (Civil Division 3rd – 1st section), the benefit of the SNC network Toulouse park, partnership, headquartered 143, avenue de Verdun 92442 Issy-les-Moulineaux, defendant to appeal; II – The appeal No. 99-20019 E formed by the NCS Network Toulouse park to quash the same ruling in favor of the company printing, defendant to appeal; The plaintiff in appeal No. 99-18676 V relies in support of its application, a unique way of appeal annexed to this Order; The plaintiff in appeal No. 99-20019 E invokes in support of its application, a unique way of appeal annexed to this Order; THE COURT, in the public hearing on May 9, 2001, attended by Mr. Beauvois, President, Stephan, reporting judge, Miss Fossereau, MM. Toitot, Bourrelly, Peyrat, Guerrini, Dupertuys, Philippot, Assie, Mrs. Gabet, counselors, MM. Pronier, Betoulle, Mrs. Nesi, counselors referendum, Mr. Baechlin, General Counsel, Ms. Jacomy, Clerk of room; On the report of Ms. Stephan, counselor, observations Choucroy Me, counsel for the SNC network Toulouse park, Me Vuitton, lawyer of the company printing the conclusions of Mr. Baechlin, General Counsel, and after deliberating in accordance with law; Joint appeals No. 99-20019 E and V 99-18676; On the sole ground of appeal No. 99-20019 E: Whereas, according to the judgment (Toulouse, June 8, 1999), the company Toulouse park system, from the rights of the company Jean Rodier, by private agreement of October 8, 1992, leased to the company Printing premises for commercial use; that, by act of May 21, 1997, she was assigned to request payment of a sum for expenses; Whereas the company network Toulouse Park complains that the decision to say that the lease is void for mistake and fraud, then, in a way: 1 / that the fraud involves an intent to deceive made by fraud; that not making any findings which establish, on the day of the conclusion of the lease, the future increase in charges was known to the lessor and had been deliberately hidden from the customer, the appeals court’s decision deprived of any legal basis under Article 1116 of the Civil Code, and that does not justify what would have been the fraud of the lessor, including what signs the contract documents published in 1992 were false, the Court of Appeal denied the decision of any legal basis under Article 1116 of the Civil Code; 2 / that, as stated by the Tribunal, the lessor had merely applied the clear and precise terms of the lease, the lessee which left the burden of future loads so that by not seeking if the lessee had not failed in its duty to learn about the factors likely to lead to higher charges, which was likely to make his inexcusable error, the appellate court’s decision deprived of any legal basis to Under Article 1116 of the Civil Code; But given that having adopted, on the one hand, that prior to signing the contract, a booklet on managing costs, with the sums detailed forecast for one year, was given to the tenant, on the other hand, that Article 29 of the lease showing a specific amount of these charges with the possibility of upgrading because of unexpected expenses, and that this had increased abnormally during the years 1993 to 1997, presenting for the past year an increase of nearly triple compared to the budget, the Court of Appeal, which concluded that the major increase in terms of initial estimates was an error on the substantial quality of the rented property, has, without being required to conduct a research findings made inoperative by these grounds alone legally justified its decision on that ground; But the medium’s unique appeal No. 99-18676 V: Having regard to Article 1109 of the Civil Code, all section 1234 of the Code; Whereas there is no valid consent if the consent was given in error; Whereas, to say that the lease is terminated as of 1 November 1998, the decision holds that the contract of successive performance is, cancellation can not intervene as of the date of termination, without her may be retroactive; That in so ruling, the appeals court violated the above documents; FOR THESE REASONS: Quashed, but only in what he said that the lease of October 8, 1992 was terminated on 1 November 1998, the decision of June 8, 1999, between the parties, the Court of Appeal of Toulouse; calls, therefore, as to what the cause and the parties in the state they were before the judgment and to be granted, the returns to the Court of Appeal of Bordeaux; Condemns the SNC network Toulouse park at the expense of appeals; Having regard to Article 700 of the new Code of Civil Procedure, condemned the Toulouse Network SNC park pay the company printing the sum of 12,000 francs or 1 829.39 euros; Said that the audit of the Attorney General at the Court of Cassation, the above will be sent to be transcribed in the margin or as a result of the partially broken off; Well done and tried by the Court of Cassation, Third Civil Chamber, and pronounced by the President in a public hearing on 13 June two thousand and one.
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case 42
Supreme Court of Appeal
Civil Division 2
| Public hearing on February 8, 2001 | Rejection |
Appeal No.: 00-13366
titled Unreleased Chairman: Mr. Guerda Advisor
FRENCH REPUBLIC
ON BEHALF OF THE FRENCH PEOPLE
ON BEHALF OF THE FRENCH PEOPLE
THE COURT OF APPEALS, SECOND CIVIL DIVISION, made the following ruling:
The appeal brought by Ms X. ..,
to quash a decision of 5 November 1998 by the Court of Appeal of Paris (24th Civil Division, Section C) in favor of Y. ..,
defendant to appeal;
The plaintiff relies in support of its appeal, three grounds of appeal annexed to this Order;
THE COURT, under Article L. 131-6, paragraph 2 of the Code of Judicial Organisation in the hearing on January 10, 2001, which were present: Mr. Guerder, senior adviser acting for the President, Mr. Trassoudaine, Commissioner of rapporteur, Mrs Solange Gautier , consultant, Mr. Kessous, General Counsel, Ms. Claude Gautier, Registrar of room;
On the report of Mr. Trassoudaine, Commissioner of the observations of SCP Bouzidi, counsel for Ms. X. .. from Choucroy Me, Y. .. lawyer, the conclusions of Mr. Kessous, General Counsel, and after deliberated in accordance with law;
Whereas, according to the judgment (Paris, November 5, 1998), Ms. X. .. filed a divorce petition for breach of common life and her husband filed a counterclaim for divorce for cause;
The first plea:
Whereas Ms. X. .. complains that the decision to have the divorce of the spouses X. .. solely to blame and have rejected all his claims, then, by type:
1 / that the original petition for divorce for breach of common life is admissible only if it specifies the means by which the husband’s duty to provide aid and its obligations to children, holding that, to reject the means by which Ms. X. .. invited him to the irregularity of the request under Article 1123, that Ms. X. .. can not take advantage of irregularities it has itself created and can not be invoked by the opponent at the request of which the act was done, the Court of Appeal violated Article 1123 of new Code of Civil Procedure;
2 / Ms. X. .. argued that the petition filed on his behalf was unlawful under section 1123 of the new Code of Civil Procedure if it did not specify the means by which the husband will both during the proceedings after the dissolution marriage duty relief, the petition stated that “.. MY has one of wealth and also operates alone. Also, Ms. X. .. Y. .. offer compensatory allowance as the sum of one symbolic franc” , which results in that it did not specify the means by which the husband had to provide during the proceedings the duty of support, holding that the application contained a reference to the situation of children and the husband he was stated that since he enjoyed one of operated assets, Ms. X. .. offered a symbolic franc, to deduce that there is a qualified financial offer compensatory allowance for error, this procedure leaving the duty of support, the Court of Appeal did not draw the legal consequences of his s’évinçant own findings which showed that the request did not specify the means by which the husband intended to ensure that during the proceedings and after the divorce his duty relief in respect of the other spouse, and thus violated Articles 1123 the new Code of Civil Procedure and 239 of the Civil Code;
3 / Ms. X. .. alleged irregularity of the request did not specify the means by which the husband was to ensure the dissolution of marriage duty relief, the petition stated only that “.. MY has one of wealth and also operates only. Also, Ms. X. .. Y. .. offer compensatory allowance as the sum of one symbolic franc “;
it was therefore not reported on the performance of a duty of support, no indication being given heritage as the head of the petitioner that the defendant spouse, however, that in deciding this request was regular since it stated that the husband enjoyed only heritage he operated, the wife with a symbolic franc, that there was indeed a financial offer qualified compensatory allowance for error, this procedure leaving the duty of support, the Court of Appeal misconstrued the application made no mention of a duty of support and violated Article 1134 of the Civil Code;
4 / inadmissible what the initial request for divorce for breach of common life merely states that children are adults, the motion says “the children of the union of husband’s major”, that in considering this request admissible, it contained a reference to the situation of children, however, that no reference was made to their situation, if not the major indication that they were, the Court of Appeal misconstrued the request and violated Article 1134 Civil Code;
But It is clear from Article 122 of the new Code of Civil Procedure constitutes a procedural bar to any means which tends to make the opponent declare inadmissible the application, without consideration of the merits for failure of the right act, as in a divorce sought for breach of common life, the lack of precision in the initial request, the means by which the husband’s duty to provide aid and its obligations to children, is one end of inadmissibility that can not be invoked by the person making the request;
It is therefore with good reason, that the Court of Appeal ruled that Ms. X. .. can not take advantage of irregularities it has itself created and can not be invoked by the opponent at the request of which the act was done;
Hence it follows that the plea is unfounded in all its branches;
The second plea:
Whereas Ms. X. .. complains that the decision to have the divorce solely to blame, while Ms. X. .. the alleged lack of consent affecting the petition for breach of common life, Ms. X. ..indicating that the choice to have ignored this procedure destroys forever any right to alimony and matrimonial advantages, by the terms of the request Ms. X. .. providing a fair compensatory allowance and seeking support; saying that Ms. X. .. can not rely on lack of consent when it initiated proceedings in breach of its legal effect as the act instituting the proceedings required only in accordance with Article 489 of the Civil Code to be sane, that Ms. X. .. had its full legal capacity, she was assisted by counsel, she has initiated this process after a long separation of husband and then a cooling off period, it was his first to be informed of the consequences of choice of a proceeding under section 237 of the Civil Code to conclude that the medium is irrelevant and will be rejected, the appeal court which decides on grounds irrelevant, disregarding whether the query terms not caused an error, does not legally justified its decision with respect to Articles 1109 and following of the Civil Code;
But given that Articles 1109 and following of the Civil Code, relating to the conditions essential to the validity of contracts, have no application to the unilateral act that constitutes the petition for breach of common life;
Hence it follows that the plea is ineffective;
The third plea, as shown in the appendix:
Whereas Ms. X. .. complains that the decision to have the divorce solely to blame and have rejected all his claims;
But whereas, under the guise of a violation of Article 455 of the new Code of Civil Procedure, the medium tends only to revive discussion before the Court of Cassation the sovereign appreciation by the Court of Appeal, which n ‘ was not required to enter into the details of the parties’ arguments, scope and value of evidence of the wrongful nature of the allegations against the wife and the lack of “forgiveness” of the husband;
Hence it follows that the ground can only be removed;
FOR THESE REASONS:
Dismiss the appeal;
Condemns Ms. X. .. the expense;
Well done and tried by the Court of Appeals, Second Civil Chamber, and pronounced by the President in a public hearing on 8 February two thousand and one.
Contested decision: Court of Appeal of Paris (24th Civil Division, Section C) 1998-11-05
case 41
| Contracts, conc. consumers. 2000, pers. 140, note LL, JCP G 2001, II, 10510, note Ch Jamin; Defrénois 2000, p. 1110, pers. D. Mazeaud and p. 1114, pers. Ph. Delebecque, RTD civ. 2000, p. 566, obs.J. Mestre B. Fages
Supreme Court of Appeal
FRENCH REPUBLIC Having regard to Article 1116 of the Civil Code; Whereas in 1986, Ms. Boucher sold by public auction of fifty photographs Baldus at a price of 1,000 francs each, in 1989, she found the buyer, M. Clin, and sold him successively thirty-five photographs and fifty other photographs Baldus at the same price it had set, the information chief of criminal fraud, open the complaint with a civil Ms. Boucher, who had learned that Mr. Baldus was a photographer of great renown, was closed by an order of dismissal, Ms. Boucher was then assigned to the buyer invalid sales fraud; Whereas in condemning Mr. Cline to Ms. Boucher to pay the sum of 1,915,000 francs representing the return value of the photographs sold at the sales counter of 1989, net sales price of 85,000 francs collected by Mrs. Boucher, the judgment, after noting that before concluding with Ms. Boucher sales in 1989, Mr. Cline had sold photographs of Baldus he had purchased at public auction at prices unrelated to their price purchase, holding so he knew that by buying new photographs at a price of 1,000 francs the unit, he contracted a small price compared to the value of the photographs on the art market, thereby breaching the obligation to contract in good faith that hangs over any contractor and that its reluctance to let him know the exact value of the photographs, Mr. Clin prompted Ms. Boucher to make a sale it would not have considered in these conditions; By so holding, so that no disclosure requirement did not bear the buyer, the Court of Appeal violated the text referred to above; FOR THESE REASONS: Quashed, in all its provisions, the decision of December 5, 1997, between the parties, the Court of Appeal of Versailles shall, therefore, the cause and the parties in the state they were before said stop, and to be granted, the returns to the Court of Appeal of Amiens.
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case 40
On the appeal brought by the company BP France, limited liability company whose registered office is 10, quai de Nacre in Courbevoie (Hauts-de-Seine), to quash a decision of 13 December 1989 by the Court of Appeal Riom (3rd Civil Chamber), in favor of Mrs. Marcelle Loubeyre, widow Rodde, currently residing in Fresno Villa Avenue Fernand Brun Riom-the-Mountain (Cantal), responding to the appeal; The plaintiff relies in support of his appeal, the sole means of appeal annexed to this decision:
Medium produced by Me White, a lawyer for advice for BP France.
Grounds of appeal
It is alleged that the decision invalidating attacked Loubeyre condemning Madame, who had jointly committed to the Company FRANCE BP to pay the debts of the tenant and manager of its business of distribution of petroleum products, not to pay Company BP FRANCE part of these debts is 119 286 francs;
The grounds that the company BP FRANCE, having left a heavy burden of accumulated unpaid and has continued in spite of all deliveries, without telling Madame Loubeyre, had breached the duty of loyalty and information derived from the situation guarantor of it and had thereby violated the provisions of Articles 1382 et seq;
So on the one hand that articles 1382 and following of the Civil Code can not be invoked to support a claim for damages arising, for one party to the contract, a mistake made by the other party in the performance of a contractual obligation that the Court of Appeal, which stated that the Company BP FRANCE breached its duty of information arising from the commitment of joint guarantee signed on its behalf by Mrs. Loubeyre, could not restrain the tort Company BP FRANCE (violation of Articles 1147 and 1382 of the Civil Code);
While on the other hand, in case of solidarity from the debtor, each may be compelled for the whole and the creditor may apply to the debtor that he wants to choose, thus, the creditor ‘s is under no obligation to inform a co-debtor delays he could give to another co-debtor or the increase in debt (violation of Articles 1200 and 1203 of the Civil Code).
THE COURT, under Article L. 131-6, paragraph 2 of the Code of Judicial Organisation in the public hearing on March 29, 1994
On the sole ground, taken in its two branches:
Whereas, as the Court referred (Riom, December 13, 1989), Ms. Loubeyre, who runs a gas station and as such bound to France BP (BP) by a commission contract for the sale of fuels gave, October 9, 1984, with the approval of BP, in its business management lease to the company Bourboule Automobile, by letter of 23 October 1984, BP reminded that Ms. Loubeyre according to the contract between them, it was required for the proper performance of the obligations of the company Bourboule Automobile, that it ceased its payments July 29, 1987, BP asked Ms. Loubeyre payment of a sum ‘representing nearly three years of commission ‘; that the Court of Appeal allowed the request but reduced the amount by retaining, against BP, which consisted of a mistake letting’ accumulate a heavy load delinquency ‘;
Whereas BP accused stopped and found to have then, according to the appeal, first, that Articles 1382 and following of the Civil Code can not be invoked to support a claim for damages arising, for one party to the contract, a mistake made by the other party in the performance of a contractual obligation that the Court of Appeal, which stated that BP had failed its duty of information arising from the commitment of joint guarantee signed on its behalf by Ms. Loubeyre, could not restrain the tort of BP, without violating the articles 1147 and 1382 of the Civil Code, and then, on the other hand, in case of solidarity from the debtor, each may be required for the full and the creditor may apply to the debtor that he wants to choose, thus, the creditor is not required to inform a co-debtor of time he could give to another co-debtor or the increase in debt (violation of Sections 1200 and 1203 of the Civil Code ;
But wait, first, that the decision holds that BP breached its duty of loyalty ‘continuing nevertheless deliveries without notice to Ms. Loubeyre and thus to terminate the lease management that it had reached with the company Bourboule Automobile ‘; in the state of these assessments, the court of appeal has been estimated that BP had made a mistake, which, notwithstanding the terminology wrong, denounced by the first branch but does not affect the outcome of the dispute was contractual in nature;
Whereas, on the other hand, decides that the decision properly and that the fault committed against Ms. Loubeyre could be opposed by it to BP;
Hence it follows that the means can not be allowed in any of its two branches;
FOR THESE REASONS:
Dismiss the appeal.
On the report of Councillor M. Grimaldi, the observations of Mr. White, counsel for BP France, Mr. Capron, counsel for Ms. Rodde, the findings of Ms. Piniot, General Counsel. M. Bezard, President.
case 39
Com, November 26, 1996, Bull No. 282, No. 94-1584
On the sole ground, taken in its four branches
Whereas, according to the judgment (Paris, March 18, 1994), that Mr. Locatelli a, through the brokerage firm Hauvette Goy, now Cofibourse, made MATIF operations, these operations having settled by losses, the brokerage firm has assigned the payment of the outstanding balance of his account;
Whereas Mr. Locatelli complains that the decision of the sentence pronounced against him payment, then, according to the appeal, first, that the contractual liability of the brokerage firm is involved since it infringed obligation to cover the general rules established by the board of the futures market in which the contract refers specifically to open an account, by refusing to impose the responsibility of society Goy Hauvette against Mr. Locatelli because of all transactions on his account, although the account balance would have become debtor, however, that after the brokerage firm did not call daily margins before May 15, 1990, in violation of its contractual obligations, the Court of Appeal did not draw the consequences of its own findings, thereby violating section 1147 of the Civil Code, then, secondly, that in its conclusions, he argued that Locatelli had signed a contract for five positions only, as a result, the positions on the market on its behalf by the company Hauvette Goy, who, without requiring immediate payment of margins debtor, has been able to otherwise, strengthened its position of 19 to 31 contracts, without his ordered were perfectly illegal and inconsistent with the laws governing the internal market, that does not meet these heads of claim which established irrefutably ‘actions outside the mandate the brokerage firm the Court of Appeal violated Article 455 of the new Code of Civil Procedure, so also in case of dispute, it is for the brokerage firm of prey it has fulfilled its obligation to provide information to the client of risks involved in speculative trading on futures markets, stating that Mr. Locatelli not pay no record of the debates that the company Hauvetxe Goy had failed in its obligation to information did not address his contract notes between February 28, 1990 and March 16, 1990, the Court of Appeal reversed the burden of proof, in violation of Article 1315 of the Civil Code, and then, finally, that the duty be charged a brokerage firm to inform his client of the risks involved in speculative operations. the futures markets is a measure of market protection and client which aims to prevent it from passing orders too risky for him after seeing the failure by the company Goy Hauvette his duty information as of March 16, 1990, while the debit balance of his account at that date amounted to more than 80,000 francs and has accelerated the development of a rapid and uncontrolled. to flow more and more substantial, the Court of Appeal could then blame Mr. Locatelli to have continued to place orders from that date and limit, after division of responsibility, his right to compensation for damages , in so ruling the Court of Appeal has not reached the legal consequences of its findings, thereby violating section 1147 of the Civil Code;
But wait, first, that after noting that Mr. Locatelli had control operations MATIE and was aware of what they were high risk, which can result in significant losses and fast, the Court of Appeal have retained the brokerage firm, which had not breached its duty of information to his client, had not incurred liability by not calling daily margins ;
Whereas, secondly, that to dismiss the claim of Mr. Locatelli on the failure to issue contract note from the brokerage firm for a certain period, the decision is not limited noted the lack of production of any document to that effect, but also notes that the applicant was informed of the status of his account, and had continued after this time his orders with regard to actual balances of its accounts and that the Court of Appeal has, therefore, not reverse the burden of proof, but appreciated the scope of the various facts discussed in front of her;
Whereas, thirdly, that the Court of Appeal accepted that Mr. Locatelli was the author of all operational orders recorded on its behalf; thus, she said, citing the conclusions of the initiatives brokerage firm on behalf of
FINALLY, in holding that, in the finals, Mr. Locatelli has engaged in particularly hazardous operations, compounding continuously flow from his account, the appellate court, thus, shows the reckless behavior, holding that he has personally liable, at least partially, the Court of Appeal reached the legal consequences. its findings;
Hence it follows that the plea is unfounded in all its branches;
FOR THESE REASONS
Dismiss the appeal.
