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.

 

Posted on ខែមករា 11, 2012, in យុត្តិសាស្រ្ត. Bookmark the permalink. Comments Off on case 51.

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