D. 1997, 121 Case Société Banchereau v. Société Chronopost Subsequent developments
22 October 1996
Translated by:
Tony Weir
Professor B. S. Markesinis

The Court:

In view of article 1131 Code civil;

Given that according to the judgment under attack, which reversed the decision at first instance, the Banchereau Co. on two occasions entrusted the Chronopost Co. with a package containing a submission to arbitration, which Chronopost undertook to deliver by noon the following day, that Chronopost. failed to do so and that when sued for damages by the Bandereau. sought to rely on the clause in the contract which limited its liability to the cost of delivery, which it had paid;

Given that the decision dismissing the claim of the Banchereau Co. admitted that Chronopost was in breach of its obligation to deliver before noon on the day following their receipt of the package, but nevertheless held that its fault was not so gross as to prevent the application of the limitation clause;

But given that in so deciding when Chronopost, a specialist undertaking which guaranteed the reliability and speed of its service and promised to deliver the Banchereau packages by a certain time, failed to honour this essential obligation, the Court of Appeal violated the text cited, and the clause limiting Chronopost’s liability must be treated as struck out as being in conflict with the engagement it undertook;

For these reasons, … QUASHES the decision rendered by the Court of Appeal of Rennes and remits the matter to the Court of Appeal of Caen.

Subsequent developments

This note on subsequent developments reflects the legal situation as of October 2004.

Com 22 October 1996: "A clause limiting liability which contradicts the essential obligation in a contract must, by application of article 1131 of the Code civil, be deemed not to have been included". Case law maintained.

Cf Juriclasseur "Contrat-distribution", instalment 110: "Clauses d'allegement des obligations" (Clauses alleviating obligations), Philippe Delebecque, 1998: "Under the theory of clauses exempting from liability, consideration of the fundamental obligation of the contract is not unimportant, in the sense that case law assimilates non-performance of an essential obligation to serious fault (faute lourde)" which "prevents the debtor from taking advantage of such a clause." This case law is not entirely an innovation (see in particular Civ 1, 18 January 1984, Bull no 27 and Com 9 May 1990, Bull no 142), although its basis - the cause of the contract - differs from previous solutions. On the reference back after cassation, it was confirmed by the appeal court of Caen on the 5 January 1999. This court considered that such a clause should be deemed not to have been included because it "was almost equivalent to a clause exonerating from liability" insofar as "it takes away from performance of the contract all its compelling character, and reduces indemnification to the mere price of the transport", thus making "the essential obligation of the transporter lose all its import and value, thereby destroying even the cause of the carrier's promise".

Translation by Mr Raymond Youngs

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