The Court:

Given that on 9 May 1935 the Société cultuelle de secours israélite de Saint-Fons…sued Barouk Bittoum for 6,000 francs as damages for breach of contract in selling non-kosher meat, that is, meat not having received the rabbinical stamp of approval;

…

Given that the expert reported that while Barouk Bittoum admitted to the serious fault of buying 12 kilos of non-ritual meat from a slaughterhouse in Lyons, the plaintiffs had not really proved any consequent loss as this meat was resold to a buyer who was neither an Israelite nor a member of the Cultuelle de Saint-Fons; on the other hand, it was not shown that Barouk Bittoum who counterclaimed fro 10,000 francs had yet suffered any loss as a result of the facts reported;

Given that it emerges from the debates that the Société cultuelle israélite de Saint-Fons, formed exclusively by and for Moroccan Jews, was obliged, in order to reconcile the requirements of their millennial religious law with the exigencies of modern life, to ensure (1) the assistance of a rabbi whom they had to bring at great expense from Morocco to supervise the ritual slaughter, and (2) the cooperation of two retail butchers, members of their sect, which, given the modest resources of the members, involved considerable effort and expense;

Given that the sale of non-kosher meat by the defendant butcher, for which he is being sued by his coreligionists, is not an offence under French law, it remains true that he in selling non-kosher meat he was in breach of his contract with the claimant society, a contract which has the force of law between the parties, and that despite the personal views of the expert it is clear that Barouk Bittoum caused moral harm to the members of the claimant society by causing them worry and trouble, as well as material harm through the disruption of the cult which they had had considerable difficulty in organising;

Given that as regards the claimant society’s demand for 6,000 francs as damages one must make a just appreciation of the moral and material harm suffered, and while it is true that there was a clause in the contract by which Barouk Bittoum agreed to pay 500 francs if he sold a kilo of non-kosher meat this must be interpreted as an indeterminate kind of penalty, for if one simply multiplied the 500 francs by the number of kilos shown to have been sold, as the claimants propose, one would reach an astronomical sum .., besides which the clause does not say that the 500 francs is to be paid per kilo sold but only if he sells one kilo, and since the former interpretation is dubious and would lead to granting the exorbitant demand of the claimant, the award of 6,000 francs must be reduced to 1,000 francs;

Given that neither the evidence nor the expert’s report indicate that Barouk Bittoum has suffered any business loss whatever;
For these reasons declares that the contract is terminated by reason of the wrongs committed by Barouk Bittoum, and holds him liable to pay the claimant the sum of 1,000 francs.

Subsequent Developments

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

Tribunal de commerce de Lyon, 18 September 1936: a butcher who, having committed himself in writing to a Jewish society only to sell kosher meat, sells ordinary butchers' meat as well, commits a fault. This fault justifies cancellation of the contract for the wrongs committed by the butcher, with an order against him for damages for the moral harm caused to the society, and the material harm on account of disruption caused to religious ritual. Case law maintained (assumed to be maintained).

Although it appears certain that modern civil case law also would decree cancellation of the contract for the wrongs committed by the butcher for having failed in his obligation of loyalty, this case law being connected with the obligation to perform agreements in good faith, it must be said that case law seems particularly rare on this subject. It has not been possible to find any judgment or civil decision to mark the maintenance or, less probably, the abandonment of this case law. One of the possible explanations for this situation is that, as the commentator on this decision had already remarked (Gazette du Palais, II, 12 December 1936, p 893), the facts alleged against the butcher were, despite the terms of the judgment on this point, capable of assuming a penal character. According to Jacques Henri Robert (Juriclasseur "Penal - Annexes", instalment 40: "Fraude - Tromperie" (Deceit - Fraud), October 1999), fraud (art L 213 1 of the Consumer Code repeating the provision in art 1 of the law of 1 August 1905) is a delict which can be committed on the formation or performance of most civil or commercial onerous (a titre onereux: obliging each party to give or to do something) contracts concluded relating to a substantial quality of the goods delivered or sold. Thus, "if the parties have attributed to the goods a special quality which things of this kind do not ordinarily have, their agreement binds the judge when considering the substantial character of this quality. Meat from a butchers retains the same nutritional properties whether it has been blessed by an authorised rabbi or not; but consideration of this rite, when it has been carried out, forms a substantial quality of meat presented as kosher" (Cass crim, 4 May 1971, Bull no 132 and 21 July 1971, Bull no 234: "The delict of fraud about the qualities of goods sold is committed by a person who knowingly sells meat or puts it up for sale, presenting it as being "kosher" when it does not possess this substantial quality").

Translation by Mr Raymond Youngs

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