France 23 October 1996 Appellate Court Grenoble (Gaec des Beauches v. Teso Ten Elsen) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/961023f1.html]
Primary source(s) for case presentation: Case text
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 94/3859
CASE NAME:
CASE HISTORY: 1st instance Tribunal de Grande Instance Valence 19 April 1994
SELLER'S COUNTRY: Germany (defendant)
BUYER'S COUNTRY: France (plaintiff)
GOODS INVOLVED: Stock equipment: live stock pens, drinking troughs, etc.
FRANCE: Grenoble Court of Appeal 23 October 1996
Case law on UNCITRAL texts (CLOUT) abstract No. 205
Reproduced with permission from UNCITRAL
In May 1990, a French [buyer] ordered equipment and plant from a German [seller]. The latter confirmed the order on the basis of its general terms indicated on the reverse side of the order form. After delivery and payment of the price, the French [buyer] demanded restitution of part of the price paid, because it considered that the amounts paid exceed the invoiced amount.
Its demand for reimbursement having been refused, the French [buyer] brought an action against its seller before Valence Commercial Court. Following dismissal of the action, it lodged an appeal before the Court of Appeal of Grenoble.
The Court of Appeal dismissed the jurisdiction clause on the ground that it had not been drawn up within the meaning of Article 17 of the Brussels Convention. The Court of Appeal ruled on the question of applicable law and sought to ascertain whether the French court could be deemed competent under article 5(1) of the Brussels Convention, which provided for special jurisdiction in contractual matters in favour of the court of the place where the obligation giving rise to the action had been or was to be performed. In order to determine this place, the Court of Appeal of Grenoble stated that jurisdictional competence must be assessed in the light of the provisions of the Vienna Convention, applicable in the case in point by virtue of Article 1(1)(b) CISG, French law being indicated by the provisions of private international law (Hague Convention of 15 June 1955 on the Law applicable to International Sales of Goods, art. 3(2)).
The Court of Appeal stated that the Vienna Convention established the place of payment of the price as the seller's place of business (art. 57(1)); and that the usual interpretation of this provision was that it expressed the general principle that payment should be made at the place of domicile of the creditor. The Court therefore concluded that the Valence Court was competent by combined application of CISG and article 5(1) of the Brussels Convention.
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APPLICATION OF CISG: Yes [Article 1(1)(b)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles
Classification of issues using UNCITRAL classification code
numbers: 4B1 [Scope of Convention: validity of choice-of-forum clause ruled on under domestic law];
7C22 [Recourse to general principles on which Convention is based: rule set
forth in Article 57 is an expression of the general principle that
obligations to pay are to be performed at the place of business];
8C [Interpretation in light of surrounding circumstances];
57A [Place for payment: in absence of agreement, payment at seller's place of business];
74A [Damages (general rules for measuring): loss suffered as consequence of breach].
Descriptors:
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=222&step=Abstract>; [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 8; Uniform Law Review (1997-1) 182-184
French: Uniform Law Review (1997-1) 183-185
CITATIONS TO TEXT OF DECISION
Original language (French): CISG - France
(website address: "http://Witz.jura.uni-sb.de/CISG/decisions/231096v.htm"); Revue critique de droit international privé (1997) 762; Unilex
database <http://www.unilex.info/case.cfm?pid=1&do=case&id=222&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION English: Bonell, Uniform Law Review (1997-1) 34 [42]; Honnold, Uniform Law for International Sales (1999) 110 [Art. 7(2): general principles (party required to pay)], 360 [Art. 57]; Koch, Pace Review of Convention on Contracts for International Sale of Goods (1998) 203-204 n.206 [application of UNIDROIT Principles to confirm a result already reached under the CISG]; Petrochilos, Arbitration Conflict of Laws Rules and the CISG (1999) n.43; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.64; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 7 para. 30 Art. 57 paras. 11a, 25; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 426 French: Fauvarque-Cosson, [1998] 50 Revue internationale de droit comparé 463 [484]; Sinay-Cytermann, Revue critique de droit international privé (1997) 762
German: Bonell, 15 Bulletin Association Suisse de l'Arbitrage (1997) 600 [604]
Classification of issues present
Editorial remarks
Citations to other abstracts, case texts and commentaries
CITATIONS TO OTHER ABSTRACTS OF DECISION
Queen Mary Case Translation Programme
Translation by [*] Katarina Kunce Kern [**]
Translation edited by Kirstin Stadtländer [***] R.G. No. 94/3859
REPUBLIC OF FRANCE Court decision of 23 October 1996
PARTIES AND COUNSEL: Scea Gaec des Beauches Bernard Bruno, of Les Beauches à Etoile sur Rhone (26800),
France, appellant against a decision issued by the Tribunal de Grande Instance [Court of First Instance] of Valence
19 April 1994, appeal filed 15 September 1994, represented by attorney at law Mrs. Ramillon, assisted by Mr.
Tatiguian, attorney at law with office in Valence, v. Company Teso Ten Elsen GmbH & Co KG, of Dassendaler Weg
13-4176 Sonsbeck 1, Germany, appellee, represented by S.C.P. attorney at law Mr. Grimaud, assisted by Mrs. Mauro,
attorney at law with office in Paris and J. Balestas, attorney at law, office in Grenoble. COMPOSITION OF COURT:
Mr. Beraudo, presiding judge; Mr. Baumet as judge; Mrs. Comte as judge.
HEARING
Public hearing 18 September 1996, Mr. Beraudo, presiding judge in charge of the report, in the
presence of Mr. Baumet, assisted by Mrs. Pelisson, Court Clerk, heard the attorneys' conclusions
and counsel's pleadings, with no objections from either party, according to the conditions in articles
786 and 910 of the Civil Procedure Code. The Court has taken these into consideration and the
decision was handed down at public hearing Wednesday 23 October 1996 after a prolongation of
the deliberation. The decision rejected all claims of appellant [buyer].
[Buyer] claimed several sums at the title of overpaid amounts and interest damages.
Considering that defendant [seller], of Germany, alleges that the French court does not have
jurisdiction as the contract contains a choice-of-forum clause in favor of the courts of Sonsbeck,
Germany;
The following facts:
Considering the correspondence from [buyer], it results that [buyer] claims from [seller] the partial
restitution of the price for an installation carried out by [seller] for [buyer] who runs an intensive
livestock farming in the region of Valence.
Considering that judicial competence in the European Community is regulated by the Brussels
Convention of 27 September 1968; Considering, that this Convention determines competence of the
community law and derogatory and special competences; Considering, that the Brussels Convention
states as a main principle the autonomy of the parties; Considering that article 17 of this Convention
states:
Prorogation of jurisdiction
Article 17
"If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a
court or the courts of a Contracting State are to have jurisdiction to settle any disputes which
have arisen or which may arise in connection with a particular legal relationship, that court
or those courts shall have exclusive jurisdiction.
"Such an agreement conferring jurisdiction shall be either
(a) in writing or evidenced in writing or,
(b) in a form which accords with practices which the parties have established between
themselves; or
(c) in international trade or commerce, in a form which accords with practice in that trade or
commerce of which the parties are or ought to have been aware and which in such trade
or commerce is widely known to, and regularly observed by, parties to contracts of the
type involved in the particular trade or commerce concerned. …"
Considering that in the case at bar the order has been made on [seller]'s business paper containing
on its reverse a choice-of-forum clause in favor of the defendant [seller];That the confirmation of
the order taking up again this clause has been addressed on 9 May 1990 in reference to the general
conditions of [seller] provided to the [buyer]; That the established documentary credit, invoice and
CMR made reference to confirmation of this rule: the general conditions of [seller] provide:
Considering that German law and French law forbid in their domestic procedural law a choice-of-forum clause stipulated against non-merchants; Considered that, in international matters, this
prohibition is remote, that the choice-of-forum clause in question here has to find application,
That therefore [buyer] must be referred to appeal to the Civil Chamber of the Court of First Instance
of Kleve (Germany); (In application of article 17 decision of the Court of Caens of 28 November
1989 Kroenert/Fasson);
Considering that the exemption of incompetence is justified as well by the dispositions of the
community law of the Brussels Convention. Considering that article 2 of this Convention sets forth
the principle of competence in the jurisdiction of the defendant [seller]: in this case, German
jurisdiction;
Considering that, in contract matters, article 5 of the Brussels Convention provides the following
disposition:
"A person domiciled in a Contracting State may be sued in another Contracting State (1) in
matters relating to a contract in the courts for the place of performance of the obligation in
question …"
Considering that in the case at bar, the claim of [buyer] constitutes a claim for payment of a debt by
the way contested; that the alleged obligation to pay is executed at the place of the debtor and that
the obligation is disputable under French law as well as under German law.
That under these conditions, [buyer] must be referred to better appeal to the court of the eventual
debtor, in this case the Court of First Instance of Kleve (cf. in this sense to the Court of Appeals of
Montpellier, 2 Ch.A 14 September 1989, Kretzchmer/Faus Dura, Court of Appeals of Paris 1 Ch 29
March 1989 Huppmann Handel/ Khwam, confirmed by 1 Ch. Civil Cour de Cassation 20 November
1990);
Considering that the exemption of incompetence asserted by [seller] is permitted in the Court of
Appeals of Caens, and that [seller] did not appear in the first instance and is permitted to raise the
incompetence in the appeal in limine litis;
Considering that the Court will invalidate this decision in so far that the Court of First Instance of
Valence declared itself to be competent, the [seller] will receive its exemption of incompetence based
on the Brussels Convention 27 September 1968 articles 17(2) and (5).
It will reverse the rendered decision and refer [buyer] to appeal to the Court of First Instance of
Kleve.
Considering that, regarding the choice-of-forum clause, the [buyer] alleges:
1. Conditions for the validity of the clause
The conditions for validity stated in article 17 are strict:
"The writing is not sufficient, additionally, there may not be any doubt in the contractual
relations about the parties will to consent: clauses established on the reverse of the contract
are not valid, certainly no more the indirect references to a document containing the clause."
(Jurisprudence Salotti) (Cf. Jurisclasseur Procedure Civile, Fasc. 52-2, p. 25, no. 66). The Court of Justice has stated that a choice-of-forum clause must be the object of the buyers written
acceptance (Segoura v. Bonakdarian), "The new edition of the article 17, para. 1 concerns only the
forum agreements concluded between merchants; persons foreign to business affairs have to comply
with the requirements of writing or a written confirmation of verbal consent as interpreted by the
Court of Justice; it is the same for mixed businesses passed among merchants and non-merchants (cf.
Jurisclasseur Procedure Civile, Fasc. 52-2, p. 26 n.68)
In the case at bar, [buyer] whose legal representative is not able to write or read the German
language did not know about the existence of this clause written in small print in German on the
reverse of the confirmation of the order not signed by [buyer]. [Buyer] did not give his written
consent to the choice-of-forum clause of which it did not know the existence.
[Buyer] is not a merchant.
The choice-of-forum clause has to be refused as it does not satisfy the conditions of article 17 of the
Brussels Convention.
2. As to the inadmissibility of the clause
If, by chance, the Court considers the clause to be valid, it is still inadmissible against [buyer]; even
according to [seller]'s statement this clause is to be applied only between merchants. The [seller]
indicates on page 3 of its conclusions:
"The competent court and the place of contractual fulfillment are determined in Sonsbeck
for our commercial clients." The partial translation being without validity as evidence communicated by [seller](part no. 11)
makes reference to merchant clients. [Buyer] has not merchant status; it is a company of civil
character.
The choice-of-forum clause is therefore inadmissible to [buyer] [Seller] cannot extend a choice-of-forum clause intended to be applied between merchants to a non-merchant. It cannot proceed to
extensive interpretation of the clause. Subject to an official translation, the clause in dispute does not
call for any interpretation. If the interpretation had to be done, it has to be against the [seller] who
has stipulated it (art. 1162 Civil Code).
Under all circumstances, the clause asserted by [seller] is inadmissible against [buyer] who is not
a merchant.
3. As to the competence of the French jurisdiction
The competence of the jurisdiction has to be considered with regard to the provisions of the Brussels
Convention and the Vienna Convention,
Article 5(1) of the Brussels Convention is not applicable to this case. The basis of the [buyer]'s claim
is restitution of an unjustified payment. [Buyer]'s basis has extra-contractual character. It is suitable
to apply article 5(3) of the Brussels Convention that gives the competence to the jurisdiction of the
place where the damage occurred, or to the place of causal event (the unjustified payment) in the
case at bar to France.
If by chance, the Court considered to keep the contractual character -- in the sense of the nature of
the litigation which responds to the problems -- extended to the obligation for payment and the
determination of the price, the French jurisdiction would stay competent.
In this matter:
Considering, on the validity of choice-of-forum clause, that the order of 26 April 1990 does not
include a choice-of- forum clause, not even by reference to general conditions; that the reference to
general conditions does only appear in the confirmation of order of 9 May 1990 sent from [seller]
to [buyer], in which is stated:
"We thank you for the order you have sent and we confirm it on the basis of our general
conditions on the reverse as follows:"
That the confirmation order is not signed by [buyer]; that the order and the other correspondence
exchanged between the parties are written in the French language; that [seller's] general conditions
are written in German in small print, and not visible only with the eyes; that it was necessary in the
procedure for [seller] to present the Court an enlarged text copy;
Considering the absence of legibility of the clause and its presentation in German, while for its normal
activities in the French market, [seller] is obligated to use the French language; this demonstrates that
[seller] did not receive the consent of [buyer], and attempted to impose by surprise a clause on
[buyer] to which [buyer]did not consent:
That, due to the lack of consent, the clause does not have contractual validity;
That furthermore, even if the clause was valid in the sense of article 17 of the Brussels Convention,
its effectiveness would be exempted against [buyer], who does not have merchant status;
That, if it is correct that article 17 of the Brussels Convention authorizes jurisdiction agreements
among non-merchants; it does not prohibit parties to limit its use to merchants only.
That this is the case with the clause in dispute drafted:
"For our merchant clients who are not those professionals enumerated by paragraph 4 of the
German Commercial Code, the place of jurisdiction and the place of payment is in Sonsbeck
even for the moral persons of the public law."
That the conclusions of [seller] imply that a farmer is not a merchant according to German law;
Considering, consequently that the Sonsbeck jurisdiction could not be imposed upon [buyer].
Considering the competence of the Court of First Instance of Valence applying article 5(1) of
Brussels Convention; that [seller] wrote in its conclusions that the "[buyer]'s claim is a payment claim
after all in dispute; that the eventual obligation for payment is performed at the place of the debtor;
that the debts are disputable under French law as well as under German law;" but that, on the
conclusion of [seller] that "the jurisdiction competence is to be evaluated with regard to the
dispositions of Brussels Convention and the Vienna Convention;"
That the Vienna Convention on Contracts for the International Sale of Goods of 11 April 1980, by
its article 1(1)(b), governs the contract, in the absence of another law selected by the parties; that
France has been a party to the Vienna Convention since its effective date, 1 January 1988; and that
French law is applicable to such contracts in the absence of another law selected by parties, according
to article 3, para. 2 of the Hague Convention of 15 June 1955 expressly invoked by [buyer]; that the
order was received in France where it was displaced to the [seller]'s representative; that since 1
January, the French law of international sale of goods constitutes the Vienna Convention;
That, contrary to French and German law, the Vienna Convention determines the place of payment
of the price at seller's premises (article 57(1)); That the usual interpretation of this rule is that it
expresses the general principle that payment is fulfilled at the place of business of the creditor (cf.
Maskow in Bianca and Bonell, article 57, 3-2 and Oberlandesgericht Düsseldorf 2 July 1993 Unilex
D.1993-21), extended to other international commercial contracts in article 6.1.6 of the UNIDROIT
Principles of International Commercial Contracts:
"If the place of performance is neither fixed by, nor determinable from, the contract, a party
is to perform … a monetary obligation, at the obligee's place of business …" That [buyer's] action aims to hold the restitution of an overpayment; that it is constant between the
parties that it is a demand for payment; that the place of fulfillment of the obligation in dispute is the
province of the Court of First Instance of Valence where [buyer] is established; that it results from
application of article 5(1) of the Brussels Convention that the Court of this place is competent to
resolve the motion of [buyer] against [seller].
II. Substantive issues
Considering, on the substantive issues, that [buyer] asserts the following:
[Buyer] … is the owner of two agricultural buildings to be used for the breeding of chickens. [Buyer]
ordered the disposition material and the equipment for buildings from the German [seller] by
intervening of its representative in France, Mr. Christian Nigl, manager of SARL Batavi.
By two letters of 25 and 26 April 1990, the [seller] provided an estimate of costs specifying the
material to be used, the material price for each building valid for three months, the transport expenses
of the material, the methods of payment, delivery delay.
On 9 May 1990, the [seller] addressed to [buyer] a confirmation document of the initial estimate of
costs. It indicates that:
On the basis of this estimate of cost, [buyer] contracted a loan of 2,700,000 f from CRCAM
in Drome, repayable in 120 monthly installments at a 10.5% rate.
The document of credit was approved by the Caisse Nationale de Credit Agricole, which
strictly regulates the presentation of transport documents and the invoices of delivered
material, the debt amounts to [seller].
The [seller] requested to be in possession of a letter of credit six weeks before delivery and
required that the amount held by the Credit Agricole be transferred to the account of
Deutsche Bank for the best payment guarantee.
In order to receive delivery in the agreed time, [buyer] had at border already ordered breeds
of chickens, agreed that funds are to be transferred to Germany, while the methods of
payment were not changed; The [seller] could not get in possession of the due amount until
the documents are presented at the border accompanied by the invoices concerning the
delivery of material.
By two deposits, of 11 July and 10 October 1990, the Caisse Nationale de Credit Agricole
transferred to the account in Deutsche Bank the amount in advance of 1,434,069.80 f (two
times 717,034.90 f).
This amounts in advance had to be deducted of rising due amounts to [seller] opposite to the
presentation of the transport documents and the invoices containing the price of the delivered
material. The whole of material for the chicken breeding construction was delivered between
July 1990 and January 1991 by [seller], who chose the Danzas border:
This argument did not correspond to reality.
In fact, if it is agreed to hold the transport cost to be in expense of [seller] for 33,026 f HT,
the installation costs which were paid by [buyer] to SARL Batavi over and above the amounts
discharged to [seller], it is unimportant to explain the overpayment to the [seller]:
This should conclude:
The amount of 315,426.80 f held by the [seller] does not correspond to any contractual
obligation to pay at the expense of [buyer] and to any grounds or opposite in the execution
of contractual obligation to the expense of [seller]. This amount does not correspond to any
delivery or any performance on the part to [seller] who withheld the amount of money that
is not the opposite of any contractual obligation at its expense.
As a result, the amount unjustified withheld by the [seller] has to be returned to [buyer].
[Seller] concludes as follows:
The [buyer] would like to obtain the reformation by court decision, and based on his
allegation that [buyer] paid the amount of 348,452.80 f which is not a debt and claims for
recovery.
[Buyer] does not mention that the payment of the amount of 1,434,069.80 f is intervened by
documentary credit in the execution of the agreement between the parties and that such
restitution is excluded (Com.13 March 1973, Bull Civ IV n. 122, 3e Ch Civ 17 April 1969
Bull Civ III n. 302).
1. The [seller] presented to [buyer] on 26 April 1990 the estimate of costs for supply and
installation of equipment for the breeding of chickens to equip two buildings; The price for
each building of 212,770 DM (exchange rate in French francs 1 DM = 3.37 f) 717,034.90 f
was suggested:
2. It is indisputable that the parties agreed on the goods that were delivered and on their
price. The consent was reflected in the acceptance of the estimate of costs of 26 April 1990.
The sale was complete; the parties agreed upon the price and the object, The first judges so
concluded, the conformity of the delivered material and its quality are not argued. The
recovery is excluded in general, since the payment occurred as execution of agreement
between the parties, as this was the case.
Ruling of the Court
Considering that it is an established fact between the parties that the order for two buildings
had the respective price of 717,034.90 f; the Court holds:
That the [buyer's] claim has to be dismissed.
Considering the amounts in the claim, according to article 700 of the New Civil Procedure
Code on court expenses, that each party partially failed the appeal; that the [seller] regularly
summoned on 13 August 1993 did not appear in the first instance.
That it is therefore justified to rule that each party bears the expense of costs and the court
expenses that it had.
On this ground, the Court:
Stating in public and by an argued decision, after it deliberated in accordance with the law:
DECLARED in public by Mr. Beraudo, president signed with Mrs. Pelisson, Court Clerk.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellant of France is referred to as [buyer];
the Defendant-Respondent of Germany is referred to as [seller]. Amounts in French currency
(French francs) are indicated as [f]; amounts in German currency (Deutsche Mark) are
indicated as [DM].
** Katarina Kunce Kern, a law graduate of the University of Zagreb, is a member of the Bar
of Croatia who has worked with French diplomats in Croatia.
*** Kirstin Statländer is a student of law at Humboldt University Berlin. She was a member
of the team of Humboldt University at the 9th Willem C. Vis International Commercial
Arbitration Moot 2001/02 and is a coach of the team at the 10th Willem C. Vis International
Commercial Arbitration Moot 2002/03.
Case text (English translation)
Court of Appeals of Grenoble 23 October 1996
Scea Gaec des Beauches B. Bruno v. Sté Teso Ten Elsen
In the name of the French People"The competent court and the contractual place of fulfillment are determined in Sonsbeck for our commercial clients."
Pace Law School Institute of International
Commercial Law - Last updated February 9, 2007