The Court:

Given that it emerges from the findings of the judgment under attack (Paris, 27 April 1979) that on 10 June 1975 the Société L’Aigle formally agreed to purchase a certain amount of petrol from the Société Comase over a period of three years, the document including a term that “This contract comes into force only on signature by a qualified representative of the Société Comase not later than thirty days after the signature by the client. Failing this, the parties are to be under no obligation at all.”

Given that the Court of Appeal is criticised for finding that the acceptance by Comase took place within the period stipulated and then holding L’Aigle liable in damages for wrongful repudiation of the contract, whereas, according to the complainant, the party claiming performance of an obligation must prove its existence, so that here Comase must prove that it had informed L’Aigle of its acceptance prior to 10 July 1975, but instead of so holding the Court had reversed the burden of proof and based its decision on the sole fact that Comase had produced a letter dated 3 July 1975 and L’Aigle had not proved that it arrived after 10 July, while in law it was for Comase to show that the letter arrived in time and not for L’Aigle to prove that it had not, so that in failing to inquire whether the letter reached its addressee prior to 10 July 1975 the Court had deprived its decision of legal basis;

But given that, failing any stipulation to the contrary, the contract of 10 June 1975 was to become finalised not when L’Aigle received the acceptance by Comase but when Comase despatched it, the contrary contention of the applicant is baseless;

For these reasons, DISMISSES the application for review.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2005.

Com 7 January 1981, Sté l'Aigle v Sté Comase [A contract which was not to come into force unless the acceptor had signed it by a certain date did come into force on the timely dispatch by the acceptor of a letter stating that it had been signed; it was irrelevant that the offeror never received it]. This judgment - containing a solution which had already been propounded by a judgment of 1932 (Cour de cassation, chambre des requêtes, 21 March 1932) - clearly affirms that, except where there is a stipulation to the contrary, a contract becomes complete from the sending of acceptance of the offer by the other contracting party (theory of émission) and not when this acceptance is received (theory of reception). Without being expressly called in question, this case law, according to legal writers, does not seem to be clear in practice. The judges of the lower courts are in favour of searching for the parties' intention, an assessment which, coming within their sovereign powers, eludes control by the Cour de cassation. The judgments which appear to confirm this solution (see particularly Soc 11 July 2002, Bull no 254) all deal with the problems of determining the place where the contract is made and, resulting from this, the competent jurisdiction. Finally, it should be noted that the solution accepted by the judgment of the 7 January 1981 is inconsistent with the Vienna Convention of the 11 April 1980 on international sale of goods, which, for its part, enshrines the concept of reception.

Cour de cassation, commercial chamber, 7 January 1981 [Bull, IV, no 14]: "A ground which maintains that a contract by correspondence has only been formed at the moment of receipt by the offeror of the acceptance by other contracting party is devoid of any substance; except where there is a stipulation to the contrary, the parties are bound from the sending of this acceptance" Chambre des requêtes, 21 March 1932 [Dalloz Périodique 1933, I, 65]: "In a contract by correspondence, the formation of the promise occurs, and the contract is completed, by acceptance of the proposals made from the moment when this acceptance has taken place. As a consequence, the court which is competent ratione loci to deal with litigation relating to a contract for the hiring of services concluded by correspondence between a company and one of its agents is the court of the place where the proposals for the contract by the company have been accepted by the agent, and where the latter has fulfilled his functions. The remittance of a cheque by a debtor to his creditor does not release him immediately and does not realise payment; release and payment only occur by final cashing. Consequently, it is the place of cashing and not the placing of remittance of the cheque which determines competence". Case law maintained.

In the edition of 2000 of the "Grand arrêts de la jurisprudence civil" (Leading judgments in civil case law) (Dalloz, Henri Capitant, François Terré, Yves Lequette), the authors observe that with these two judgments "the Cour de cassation takes a position on the difficult question of the place and date of formation of contracts between absent parties". Although case law has hesitated a great deal between the theory of émission (the contract is formed at the moment when the person who has received the offer parts with his acceptance) and the theory of reception (the contract is concluded when the offeror receives the acceptance), the Cour de cassation by its judgment of the 21 March 1932 clearly took a position in favour of the theory of émission, a choice which was confirmed by the judgment of the 7 January 1981 which further specifies that, in the absence of a stipulation to the contrary, it is by dispatch of the acceptance that the contract becomes complete. The rule of case law laid down in 1932, confirmed by and specified in the judgment of 1981, is therefore maintained to this day, in spite of hesitations in case law (cf Civ 1, 21 December 1960 and Com 21 November 1966 leaving to the judges of the lower courts to determine, by their power of sovereign appreciation, the moment when agreement by the parties occurs). On the other hand, where payment by cheque is involved, the rule laid down in 1932 (the mere remittance of a debtor's cheque to his creditor does not effect release, the payment occurring at the date and place of cashing, and not of remittance), and accepted by case law for a long time, seems now to be called in question. Although it remains uncontested that only the cashing of a cheque effects release, case law nevertheless considers that the date of remittance of the cheque must be accepted from now on as the date of payment (Com 27 February 1968, Bull no 84; Civ 1, 2 December 1968, Bull no 301; Soc 17 May 1972, Bull no 364). Finally, as far as territorial competence is concerned, article 46 of the new Civil Procedure Code, providing that in a contractual matter "the claimant can select, at his choice, besides the jurisdiction for the place where the defendant lives, the jurisdiction of the place where the thing was effectively delivered, or the place for performance of the service" makes the case law which has developed on this subject obsolete. From now on, the place where the contract was formed cannot, in domestic law, be the criterion of territorial competence (cf Com 8 June 1999, unpublished, pourvoi no 9713625).

Translation by Mr Raymond Youngs

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