Commercial Law — The Law of Carriage — Nature of Carrier's Contractual Obligations

Date Citation Note
22.09.2004 Cour de cassation 3rd Civil Chamber Application for Review No. 03-12639 Case Monsieur X… v L’Etoile Commerciale This case illustrates several aspects of French building contracts which give rise to conflict. In particular, the point in time at which the owner takes over the completed or partially completed works is of great importance, because it is the moment from which the various warranties implied by the law into such contracts begin to run, and it is the moment at which the owner can make reservations as to the quality and consistence of the work done, redress of such reservations being financed out of the retention moneys held back by the owner out of stage payments made to the builder during the course of the building work. The act by which the owner takes possession of the building work is defined in Article 1792-6 of the Civil Code in terms which are set out in this case by the Court. Pursuant to this definition, such handover involves the participation of both parties, although there are decisions of the Cour de cassation holding that it may happen tacitly, provided, as the Court lays down here, there is evidence of an unequivocal wish on the part of the owner to take possession of the building.
30.06.2004 Court de cassation, Chambre Commerciale Application for Review No.02-17048 Case Axa Corporate Solutions Assurance et al v SA Transports Caillot The undertakings of a transportation business under contracts of carriage are often categorised (on the basis of Article 1147 of the Civil Code) as “obligations de résultat”, i.e. obligations under which the former must produce an agreed result, namely the successful carrying of the agreed objects. However, Article 1150 of that Code provides that damages are limited to those which were foreseen or could have been foreseen at the date of the contract, if the failure to perform is in no way connected with fraud (“dol”). The courts have extended the concept of fraud to include gross negligence (“faute lourde”). This term has been defined by the Court of Cassation to mean behaviour of extreme gravity bordering on fraud and showing the incapacity of the party in question to achieve or carry out its duties under the contract. This case, and cases nos. III.6.(a) (ii) and (iii) below (all handed down on the same day by the same court), give contrasting views of how the concept of “faute grave” is applied in contracts of carriage.
30.06.2004 Cour de cassation Chambre Commerciale Application for Review no.02-20984 Case NTS Transports Internationaux & TBR Tranports v Packard Bell NEC Europe BV et al See above, note III 6 (a) (i)
30.06.2004 Cour de cassation Chambre Commercial Case Cigna Insurance Company of Europe v Transgous et al See above, note III 6 (a) (i)