Given that according to the decision under attack (Douai, 12 November 2001) whereas the machine specially designed for use in his business which M. Mittenaere ordered from M. Pacholczyk, a later date for delivery being subsequently agreed in view of the latter’s health, was never delivered, since M. Pacholczyk was diagnosed as having cancer, from which he died some months later,  M. Mittenaere now sued the heirs of M. Pacholczyk in order to avoid the contract and obtain damages;

Given that the judgment below dismissed M. Mittenaere’s claim for damages and he now criticises it on the ground that

1. in holding that the disease of M. Michel Pacholczyk was unforeseeable and therefore constitutive of a case of force majeure the court failed, in violation of article 1148 Code civil, to draw the proper conclusions from its findings of fact that on 7 January 1998 when he proposed to delay delivery until the end of February, M. Michel Pacholczyk knew that he had already been unable to work for some months owing to a wrist infection which had called for repeated medical treatment;

2. since an event does not qualify as force majeure unless the debtor has taken all the precautions indicated in view of the foreseeability of the event and its effects, the court violated article 1148 Code civil by holding that the illness of M. Pacholczyk was force majeure and failing to draw the proper consequences from its own findings, namely that  instead of letting his customer know that he would be unable to deliver a machine ordered many months previously so that M. Mittenaere could make alternative arrangements, M. Pacholczyk proposed to make delivery at the end of February 1998, which he could not possibly do,  given that he had been prevented from working altogether by the infection of his wrist which had lasted for several months;

But given that a debtor is not liable in damages if force majeure or cas fortuit prevented him from performing his obligation to supply property or services or made him do what he should not have done, and that this is so when his performance has been prevented by illness, which constitutes a case of force majeure if it was unforeseeable at the time of the conclusion of the contract and irresistible thereafter; so that the court below was perfectly able to conclude that a case of force majeure was established on the facts it found, supported by the reasons it gave or approved, namely that Michel Pacholczyk, the only person  who could construct the machine, was prevented first by his temporary partial disability and then by his fatal illness, the physical disability due to the infection being unforeseeable, like the serious illness occurring after the conclusion of the contract, and the illness irresistible, as shown by the succession of events and the swift decline in his health;

Thus the complaint is baseless;

[the omission of the court below to award interest when ordering the return of the sums paid in advance under the contract now rescinded could be cured by article 462 of the new Code of Civil Procedure].

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