- D. 1960, 97 Case Société française de transports v. Société Cherenqet Société SICOMA
- 15 June 1959
- Translated by:
- Tony Weir
- Professor B. S. Markesinis
In view of article 1134 Code civil:
Given that an exemption clause contained in a contract and agreed to by the other party can be relied on as a defence to a claim for failure to perform unless there is proof of deliberate or grave fault;
Given that it emerges from the judgment under attack (Paris, 13 June 1957) and from the prior judgment whose reasons it adopted that in 1953 SICOMA retained the Société Cherencq to supervise the importation into France and the carriage from Hendaye to Paris of a cargo of fresh vegetables from Spain, and that for this purpose the Société Cherencq hired from STEF a refrigerated wagon which STEF itself was to chill; Given that according to the expert the temperature inside the wagon was 40 degrees on arrival in Paris and that the goods were spoilt, and that when SICOMA sued Cherencq for its loss and Cherencq sought recourse against STEF, the Court gave judgment for Cherencq for the sum of 774,437 francs and granted Cherencqs claim for indemnity against STEF;
Given that the contract of hire between Cherencq and STEF, to whose terms Cherencqs representative expressly consented, provided that STEF was not to be responsible for the chilling of the wagon or in particular for the condition of the goods on arrival;
Given that in disregarding the exemption clause on the ground that the contract had been badly performed without establishing against STEF any deliberate act or gross negligence, the Court of Appeal gave no legal basis for its decision;
For these reasons QUASHES the decision and remits the matter to the Court of Appeal of Amiens.
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