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.

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