Data

Date:
03-10-2013
Country:
France
Number:
12/02078
Court:
Cour d'appel de Rouen
Parties:
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Keywords

INCORPORATION OF STANDARD TERMS - REFERRED TO IN, AND REPRODUCE AT THE BACK OF, PURCHASE ORDERS - IMPLIED ACCEPTANCE

RIGHT TO DAMAGES (ART. 74 CISG) - FORESEEABLE DAMAGES

Abstract

In March 2008, an Italian seller and a French buyer concluded a contract for the sale of plastic films to be used in the packaging of reams of paper. Two months later, a Portuguese final customer of the buyer notified this latter that some of the goods resold were defective. As a result, the buyer commenced proceedings against the seller claiming for damages, but its claim was dismissed. The buyer appealed.

The Appellate Court ruled that the contract was governed by CISG pursuant to its Art. 1(1)(a).

As to the merits, the Court found that the seller had acknowledged its liability vis-à-vis the buyer for the defects encountered in the goods. In fact, after having conducted tests on the products resold to the Portuguese client which revealed that they were non-conforming, it issued a credit note in favor of the buyer and authorized this latter to destroy the defective goods.

Moreover, the Court held that the buyer was entitled to full compensation for the damage it suffered as a consequence of non-conformity of the goods. In so doing, the Court found that the seller could not invoke a limitation liability clause contained in its standard conditions of sale, since the buyer did not accept those conditions. Instead, it was the seller to be bound by the buyer’s standard terms, referred to in, and reproduced at the back of, the purchase orders, as the seller never objected to their application. Since there was not conflict between the CISG and the buyer’s standard terms with respect to the seller’s liability, the Court noted, the buyer was entitled to full compensation for the suffered loss, including loss of reputation in accordance with Art. 74 CISG.

Fulltext

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Source

Original in French:
- available at http://www.cisg.fr/pdf/20131003CARouen.pdf}}