Case:
Bull. Civ. 2002.IV, no. 121, p.129 Case Société Chronopost v. Société Banchereau
Date:
09 July 2002
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Bull. Civ. 2002.IV, no. 121, p.129
Case Société Chronopost v. Société Banchereau

Given that according to the decision under attack, rendered after remand following the quashing of an earlier decision (22 October 1996, Bull. civ., IV, no. 261), the Banchereau company handed certain documents to the Société française de messagerie internationale (SFMI) addressed to the national office of butchers, meat producers and farmers in order to bid for an allocation of meat, and that since the documents were not delivered the day following their despatch in breach of SFMI’s undertaking Banchereau was unable to bid for an allocation; that when Banchereau sued SFMI for damages as compensation for the harm it suffered, SFMI invoked the term of the contract which limited its liability to the cost of the carriage;

On the first ground of the application for review:

Given that Chronopost, successor to SFMI, criticises the judgment below for holding that the obligation it undertook was one “de résultat” or guarantee, whereas, it maintains, although the judges have a sovereign power to interpret contracts containing several terms which must be read together, it is on condition that it takes all such terms into account, and that in simply disregarding the term in Chronopost’s general conditions of business that Chronopost will use every effort to deliver its clients’ packages within the time laid down, which is characteristic of a mere obligation “de moyens”, the court below misinterpreted the contract in breach of article 1134 Code civil;

But given that the court of appeal merely applied the law laid down by the Court of Cassation, this criticism is unacceptable;

But on the second ground of the application for review:

In view of article 1150 Code civil, article 8(II) of the Law of 30 December 1982 (Law no. 82-1153) and articles 1 and 15 of the rules of the contract for the carriage of packages, established by the decree of 4 May 1988, which is applicable:

Given that in declaring that because the contract here contained a specific obligation guaranteeing timeous delivery which could be relied on it was not a contract for the carriage of packages and that in consequence the general law of carriage was inapplicable;

Given that its holding that the clause limiting the carrier’s liability was to be treated as not written entails that the statutory limit of compensation, avoidable only on proof of gross negligence on the part of the carrier, falls to be applied, the court of appeal’s decision violated the texts citedabove;

For these reasons QUASHES the decision of the Court of Appeal of Caen dated 5 January 1999 and remands the case to the Court of Appeal of Rouen.

Com, 9 July 2002, Bull IV no 121: The solution put forward by this judgment has formed the subject of numerous criticisms by legal writers; it has been pointed out that the Rouen court of appeal, which received the court file on the reference back after quashing still did not reach a decision, and that neither the lower courts nor the Cour de cassation have had to do so since. Without returning expressly to the principle laid down by the commercial chamber on the 22 October 1996 (this case is concerned with the same affair, with the same parties: the judgment is called "Chronopost"), the judgment of the 9 September reduces this solution to much more modest proportions. It substitutes for the clause restricting liability which is nullified (a solution expressly maintained) application of the droit commun of carriage which provides in this case for a legal ceiling of indemnification which corresponds to the total amount of sums provided for in the clause restricting liability. The Cour de cassation in effect considers that nullity of a clause restrictive of liability which is judged to be abusive and therefore nullified, entails, unless there is grave fault on the part of the carrier, a return not to the rules of the droit commun as the judges at first instance had considered, but application of the provisions of the droit commun of carriage. (A clause contradicting the very essence of a contract - and only such a clause - should be nullified leaving all the other provisions of the contract in existence, including those referring to a contract type capable of having the effect of restricting indemnification of the other contracting party in the same way as the annulled clause would do). However, it should be noted that this solution only applies to cases where a legal ceiling exists to indemnification which prevents return to the application of the rules of the droit commun; and that proof of a grave fault on the part of the other contracting party would in all circumstances entail return to the droit commun of contractual liability. T

ranslation by Raymond Youngs

 

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