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.