THE COURT OF CASSATION, COMMERCIAL CHAMBER
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THE COURT OF CASSATION, COMMERCIAL CHAMBER

DRMartin NOTE        Le Dalloz, n ° 7, February 14, 2002, Business Law Book, Jurisprudence   pp. 640

On the appeal brought by Compagnie Financière Edmond de Rotschild Banque, whose registered office is at 47, rue du Faubourg Saint-Honoré, 75008 Paris,

in cassation of a judgment delivered on February 26, 1997 by the Paris Court of Appeal (5th chamber, section A), in favor of:

1 ° / of the company Swatch AG, a company incorporated under Swiss law, with registered office at Jacob Stampflistrasse, 00000 94 2052 Bienne 4 (Switzerland),

2 ° / of the company CICB Compagnie internationale de concerts et spectacles, whose registered office is 34, avenue des Champs Elysées, 75008 Paris,

defendants in cassation;

The plaintiff invokes, in support of its appeal, the two grounds of cassation annexed to this judgment;

Resources produced by SCP Lyon-Caen, Fabiani and Thiriez, lawyer advising for the company Compagnie Financière Edmond de Rothschild Banque SA.

FIRST MEANS OF TERMINATION

This plea accuses the judgment under appeal of having ordered SA COMPAGNIE FINANCIERE EDMOND DE ROTHSCHILD BANQUE (CFER) to return to SWATCH AG a sum of 3 MF that the latter had paid, by mistake, into the current account that the company COMPAGNIE INTERNATIONALE DE CONCERTS ET SPECTACLES (CICS) held in its establishment;

FOR THE REASONS THAT, if it is common ground that a sum of 3 MF was unduly paid by SWATCH to the ICCS, under a partnership contract, and was credited to the latter on 2 December 1993, the CFER could not justify its refusal to reimburse it by the fact that the CICS presented a debit current account; that indeed, it was not unaware of the undue character of this sum and could thus profit from the error made by SWATCH to reduce correspondingly the debtor balance of its client;

ALORS THAT the payment made in error by a person who is not debtor does not open the right to repetition when the accipiens received only what his debtor owed him and that the solvens has to blame himself for having paid without taking the precautions required by prudence; that thus, the Court could not condemn the CFER – creditor of the accipiens – to return to the solvens, the SWATCH Company, the undue sums, since the latter had committed a serious error by paying them to the account of the accipiens without violating articles 1235, 1376 and 1377 of the Civil Code.

SECOND SUBMISSION OF TERMINATION

This plea accuses the judgment under appeal of having ordered the company COMPAGNIE FINANCIERE EDMOND DE ROTHSCHILD BANQUE (CFER) to return to the company SWATCH AG a sum of 3 MF that the latter had paid by mistake into the current account that the Company COMPAGNIE INTERNATIONALE DE CONCERTS ET SHOWS (CICS) held in its establishment;

FOR THE REASONS THAT the CFER committed a fault for which it must repair by improperly withholding to the credit of CICS a sum of 3 MF which came to clear the debt of the latter towards it only following an error of which it was perfectly informed and this, contrary to the instructions of his client; that in fact, the CFER was not unaware, taking into account the mentions set out in a pledge dated August 3 relating to a debt of 3 MF that the CICS held on SWATCH under a partnership contract, that ‘no sum remained due by SWATCH;

ALORS THAN the CFER, at the date of the disputed transfer – either 29 November 1993 – did not have to question, in any event, the reason for this transfer; that the Court could not therefore impute to him for lack of having withheld the sum of 3 MF without violating Article 1382 of the Civil Code;

AND WHEREAS it had been argued in conclusions that remained unanswered that it was up to SWATCH to demonstrate that the bank had committed a fault at the origin of the payment made, without the events occurring subsequently having, in this regard , to be taken into account; that the Court then violated article 455 of the new Code of Civil Procedure.

THE COURTYARD,

Whereas, according to the confirmatory judgment criticized, that by mistake, the Swiss company Swatch AG (Swatch company) transferred, on 29 November 1993, a sum of 3,000,000 francs to the current account opened in the books of the company Compagnie Financière Edmond de Rothschild Banque SA (the bank), on behalf of Compagnie Internationale de Concerts et Spectacles (CICS) which was declared bankrupt shortly thereafter; that following this transfer credited on December 2, 1993, the debit balance of the account, on which, the company CICS had benefited, until November 30, 1993, from an overdraft authorization of 3,000,000 francs and which s ‘established at that date at the sum of 3,178,551.35 francs, has been reduced; that at the request of the company Swatch, the company CICS then its liquidator have given, on December 30, 1993 and January 28, 1994, the order to the bank to return the funds; that this one refused by arguing that the debit balance of the account did not allow him; that the company Swatch has brought the bank responsible;

On the first plea:

Whereas the bank accuses the judgment of having ordered it to “return” to the Swatch company the disputed sum of 3,000,000 francs then, depending on the means, that the payment made in error by a person who is not debtor does not open right to repetition when the accipiens has received only what its debtor owed him and the solvens has to reproach himself for having paid without taking the precautions required by prudence; that thus, while it was itself a creditor of the accipiens, the Court could not order it to return to the solvens, the company Swatch, the undue sums, since the latter had committed a serious error in paying them on behalf of the Accipiens, without violating articles 1235, 1376 and 1377 of the Civil Code;

But whereas the judgment notes that the disputed transfer had for addressee the company CICS and that at the date when it intervened, the company Swatch was no longer indebted towards this one of any sum; that in the state of these findings and assessments from which it results in the first place, that the company CICS was the beneficiary of this undue payment and that the bank which acted only as agent of this one by registering to his account the amount of this transfer, which reduced the debit balance, was not that which had received what was not due to him, and secondly that the company CICS and its liquidator were without right or title to keep the payment received, the appeal court justified its decision; that the means is unfounded;

But on the plea raised automatically, after warning given to the parties:

Having regard to article 1382 of the Civil Code;

Whereas a credit institution is only required to execute a transfer order, if only for the return of funds unduly received by its client, if at the date of this order, it existed on the account of available funds, either because of the credit status of the account or because of the existence of an authorized overdraft;

Whereas to order the bank to return the disputed sum of 3,000,000 francs, the judgment holds that it is ill-founded in claiming that it was impossible for it to proceed with the requested restitution because of the deficit situation of the account of the company CICS, while it was aware that no sum was no longer due by the company Swatch to the company CICS under the partnership contract and that in reality, it had wanted to take advantage of the error committed to reduce the debit balance of his client’s account by 3,000,000 francs;

Whereas by determining itself thus, without investigating whether, on the date when the order to return the funds was given, there were funds available on the account of the company CICS, the court of appeal deprived its decision of legal basis with regard to the aforementioned text;

FOR THESE REASONS :

BREACH AND ANNUL, in all its provisions, the judgment delivered on February 26, 1997, between the parties, by the Paris Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Versailles;

Orders Swatch AG to pay the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the request of the company Swatch AG;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the quashed judgment.

 

THE COURT OF CASSATION, COMMERCIAL CHAMBER. Section formation.

December 19, 2000. Judgment n ° 2232. Cassation.

Appeal No. 97-16.763.

CIVILIAN BULLETIN.

 

On the appeal brought by the Société marseillaise de crédit (SMC), a public limited company, whose registered office is at 75, rue Paradis, 13006 Marseille,

in cassation of a judgment rendered on May 5, 1997 by the Nîmes Court of Appeal (1st Chamber B), in favor of:

1 ° / the General Treasurer-Paymaster of Gard, whose offices are 43, rue Roussy, 30006 Nîmes Cedex,

2 ° / of Mr. Jean Pradeaux, domiciled at 9, rue Racine, 30000 Nîmes, in his capacity as representative of creditors and liquidator of the judicial liquidation of SCI Alpha II,

defendants in cassation;

The plaintiff invokes, in support of its appeal, the single plea of ​​cassation annexed to this judgment;

Medium produced by the SCP Célice, Blancpain and Soltner, lawyer advising for the Marseille Credit Company.

MEANS OF TERMINATION

The judgment under appeal is criticized for having ordered SOCIETE MARSEILLAISE DE CREDIT to pay the GARD General Treasury the sum of 310,000F with interest at the legal rate from October 6, 1992 as well as the sum of 30,000F to title of damages;

the BANQUE POPULAIRE DU MIDI informed the SOCIETE MARSEILLAISE DE CREDIT of the transfer of receivables of which it was the beneficiary and asked it to transfer the funds into its cash registers upon receipt, attaching to said letter a RIB from the SCI ALPHA II account as well as an transfer signed by the manager of SCI ALPHA II; that in application of article 4 of the law of January 2, 1981: “the transfer or the pledge takes effect between the parts and becomes opposable to the thirds on the date stated on the slip”; that SOCIETE MARSEILLAISE DE CREDIT does indeed act as a third party in relation to the Debt Assignment Agreement between SCI ALPHA II and BANQUE POPULAIRE DU MIDI than contrary to what affirms the SOCIETE MARSEILLAISE DE CREDIT this debt assignment agreement is perfectly enforceable against it on the date shown on the slip; that it is thus with title almost superfétatoire that the BANQUE POPULAIRE DU MIDI notified him this cession debt by letter recommended with acknowledgment of receipt the 23 June 1992; that it is not disputed that the Treasurer Payeur General sent to SOCIETE MARSEILLAISE DE CREDIT a transfer order bearing erroneous and contradictory information that in fact the account number appearing on the transfer order was not a number listed by the SOCIETE MARSEILLAISE DE CREDIT but according to its nomenclature referred to those distributed by the BANQUE POPULAIRE DU MIDI; that this transfer order also bore the mention “assignment of debt” as well as the reason for the VAT credit refund transaction; that, contrary to what SOCIETE MARSEILLAISE DE CREDIT asserts, these anomalies were sufficiently apparent and obvious to arouse the suspicion of a vigilant banker, especially since this transfer order was made on June 26, 1992, i.e. after sending the registered letter by the BANQUE POPULAIRE DU MIDI; that a vigilant banker should not be unaware either that from the date shown on the transfer slip, the customer of the credit institution beneficiary of the slip cannot, without the agreement of this institution, modify the scope of the rights attached to the receivables represented by this slip; that the transfer order revocation letter sent by the manager of SCI ALPHA II to SMC should obviously and this in application of article 4 of the aforementioned law of January 2, 1981, appear inoperative to SOCIETE MARSEILLAISE DE CREDIT; that it is thus sufficiently demonstrated that the SOCIETE MARSEILLAISE DE CREDIT failed in its obligation of vigilance and control, this constituting a serious fault engaging its responsibility on the basis of article 1382 of the Civil Code; that the TPG du GARD had to transfer to the BANQUE POPULAIRE DU MIDI the sum of 310,000F (three hundred and ten thousand francs) which it thus disbursed twice, that being subrogated in the rights of the BANQUE POPULAIRE DU MIDI the TPG is empowered to claim from SOCIETE MARSEILLAISE DE CREDIT the amount of its claim that it has received on behalf of the assigning creditor; that he

a transfer was made to their detriment; by ruling thus, while the CCF had received the disputed payments in the name and on behalf of the MAT Company, which was the addressee, so that it was not liable for restitution to the SDBO, the Court of ‘Appel violated the aforementioned texts;

THEN, ON THE ONE HAND, THAT the banker simply receiving, on order and on behalf of his client, funds having been the subject of an assignment of professional debt subject to the provisions of the law of January 2, 1981, n ‘ is not a third party to whom this transfer would be opposable, so that it is not obliged to return to the transferee establishment or to a third party who would claim to be subrogated in the rights of the latter the funds received in the name and on behalf of his client; that by stating the contrary, to justify the condemnation to restitution charged to the SMC, the Court of Appeal violated articles 1937 and 1993 of the Civil Code and article 4 of the law of January 2, 1981;

THEN, ON THE OTHER HAND, THAT, since it does not contravene a legal provision or a court decision, the order of collection for account given by a customer to his domiciling bank must be executed by the latter , even if it would reveal the deliberate will of this client, in whose affairs the bank does not have to interfere, not to perform a contractual obligation that he would have subscribed to with a third party; that by declaring that the SMC had committed a fault in collecting, even on the order and on behalf of its client, sums representing a debt which it knew had been assigned to a third party, the Court of ‘Appel violated the aforementioned texts and article 1382 of the Civil Code;

THEN, IN ANY CASE, THAT, except fraud or bad faith, the banker is required to execute the collection orders given by his client, and does not have to be judge of the dispute likely to oppose the latter and a third party concerning the ownership of the sums he is asked to cash; in the present case, it was not disputed that, before receipt of the disputed transfer, the Company ALPHA II had indicated to the SMC that the transfer made for the benefit of the BPM had been concluded under the condition, not carried out, that this bank consents to him an opening of credit, that the transfer envisaged with the profit of the BPM thus had “no more cause”, and that the funds consequently had to be collected on his account opened in the books of the SMC; that

ALORS, FINALLY, THAT the order of transfer clearly indicated the number, carried of the hand of its editor, of the account of the Company ALPHA in the books of the SMC; that if it referred to an “assignment of debt”, the SMC had been advised that this assignment was henceforth null and void; that in this state, the bank was held, as she had also received the order, to execute this transfer unimportant erasures or anomalies alleged that he could include moreover; that by deducing from these alleged “anomalies” that the bank, by virtue of its vigilance application, should have refrained from executing this transfer, the Court of Appeal again violated the aforementioned text.

THE COURTYARD,

Whereas, according to the contested confirmatory judgment, the SCI Alpha II (the SCI), now in compulsory liquidation, which held two bank accounts opened respectively with the Marseille Credit Company and the Banque Populaire du Midi, assigned to the latter, in accordance with the terms of the law of January 2, 1981, a claim that it held on the treasurer-payer general of Gard; that the Société marseillaise de crédit, where the funds were initially to be paid, was notified of this transfer and that, by mistake, it was made recipient of the transfer order of the treasurer-payer general, on which the references appeared in particular , partially crossed out and inaccurate of each of the SCI’s bank accounts as well as the mention of the transfer and the reason for the transfer; that the SCI having meanwhile, informed the Société marseillaise de crédit that the sale concluded on condition of obtaining a credit opening which had been refused to it “had no longer any cause” and that it had to collect and keep the funds, the Company Marseillaise de crédit received the transfer, the amount of which she credited to her client’s account; that the treasurer-payer general disinterested the Banque Populaire du Midi and called into question the responsibility of the Société marseillaise de crédit; the Marseille Credit Company has received the transfer, the amount of which it has credited to its client’s account; that the treasurer-payer general disinterested the Banque Populaire du Midi and called into question the responsibility of the Société marseillaise de crédit; the Marseille Credit Company has received the transfer, the amount of which it has credited to its client’s account; that the treasurer-payer general disinterested the Banque Populaire du Midi and called into question the responsibility of the Société marseillaise de crédit;

On the single means, taken in its first branch:

Having regard to articles 1937 and 1993 of the Civil Code;

Whereas to retain the responsibility of the Marseille Credit Company and order it to compensate the treasurer-payer of the Gard for its damage, the judgment retains, for reasons of its own and adopted, that the Marseille Credit Company, the bank receiving the payment made by the debtor assigned to the account of the SCI in its books, being a third party in relation to the assignment of receivable in favor of the Banque Populaire du Midi, this was opposable to him, on the date shown on the slip;

Whereas by ruling thus whereas the Marseillaise Credit Company had received the disputed payment in the name and on behalf of the SCI, which was the addressee, the Court of Appeal violated the aforementioned texts;

On the sole means, taken in its fourth branch:

Having regard to article 1382 of the Civil Code;

Whereas in order to rule as it did, the judgment still retains, for reasons of its own and adopted, that, although it had received the order, the Société marseillaise de crédit had failed in its obligations of prudence and vigilance in entering the amount of the disputed transfer to her client’s account, despite the anomalies to which he was affected, when she was informed of the assignment of receivables benefiting the Banque Populaire du Midi;

Whereas by ruling thus, for reasons unsuitable to characterize the fault of the Marseillaise Credit Company, the Court of Appeal violated the aforementioned text;

FOR THESE REASONS, and without there being any need to rule on the other complaints:

BREACH AND ANNUL, in all its provisions, the judgment rendered on May 5, 1997, between the parties, by the Nîmes Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Aix-en-Provence;

Condemns the general treasurer-payer of Gard to pay the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the request of the treasurer-payer general of Gard;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the quashed judgment.

 

THE COURT OF CASSATION, COMMERCIAL CHAMBER. Section formation.

December 19, 2000. Judgment n ° 2226. Cassation.

Appeal No. 97-18.940.

On the appeal brought by Mr. Jean-Claude Bonvallet, residing at 31, route de Grezieu, 69280 Saint-Consorge,

in cassation of a judgment rendered on September 19, 1996 by the Lyon Court of Appeal (1st Civil Chamber), in favor of the Rhône-Alpes bank, whose registered office is 20-22, boulevard E. Rey, 38000 Grenoble,

defendant in cassation;

The applicant invokes, in support of his appeal, the two grounds of cassation annexed to this judgment;

Resources produced by SCP PARMENTIER and DIDIER, lawyer advising for Mr. Bonvallet

FIRST MEANS OF TERMINATION

The judgment under appeal is accused of having condemned Mr. Jean-Claude BONVALLET to pay to the RHONE ALPES Bank the sum of 167,742.67 F in principal in addition to the interest at the legal rate from March 31, 1993 and the sum of 3,000 F for costs and fees not included in costs;

FOR THE REASONS THAT the bank RHONE ALPES demonstrates by the production of a convention entitled “Norplus” bearing the signature of Mr. BONVALLET which does not deny the existence of an account opened in its books in the name of the interested party; that it also justifies by extracts from this account of a debit of 100,000 F on August 17, 1989 in favor of ITG and bank checks of 7,000 F and 12,000 F of August 18, 1989; that no transfer appears to the credit of the account in the extracts of the following months and that this one presented a debit balance of 144.821,26 F on December 19, 1990 given the agios practiced; that Mr. BONVALLET while contesting this debt does not demonstrate that the companies being formed on behalf of which he acted have resumed commitments by him subscribed;

1 °) ALORS THAN no one can constitute itself of title; that by retaining to condemn Mr. BONVALLET to pay to the BANQUE RHONE ALPES the sum of 167,742.67 F in principal, in addition to the interest at the legal rate from March 31, 1993 and the sum of 3,000 F as costs and fees not included in the costs on the grounds that the bank justified its claim by account statements that it produced, the Court of Appeal violated article 1147 of the Civil Code;

2 °) ALORS THAT any court decision must be motivated; that in his conclusions appeal Mr BONVALLET argued that the transfer of 100,000 F and the two bank checks 7.000 F and 12,000 F of August 18, 1989 had not been the subject of any order signed by him; that by not responding to this peremptory plea, which is the subject of a specific debate, the Court of Appeal violated article 455 of the New Code of Civil Procedure.

SECOND SUBMISSION OF TERMINATION

The judgment under appeal is criticized for having dismissed Mr BONVALLET for his incidental requests, in particular for the condemnation of Banque RHONE-ALPES to pay him the sum of 300,000 francs as damages, to the cancellation of the costs. custody, the release of unduly blocked securities, the cancellation of entries and the allocation of a sum of 15,000 francs per month;

ON THE REASON THAT the RHONE ALPES bank demonstrates by the production of a convention entitled “Norplus” bearing the signature of Mr. BONVALLET which does not deny the existence of an account opened in its books in the name of the interested party; that it also justifies by extracts from this account of a debit of 100,000 F on August 17, 1989 in favor of ITG and bank checks of 7,000 F and 12,000 F of August 18, 1989; that no transfer appears to the credit of the account in the extracts of the following months and that this one presented a debit balance of 144.821,26 F on December 19, 1990 given the agios practiced; that Mr. BONVALLET while contesting this debt does not demonstrate that the companies being formed on behalf of which he acted have resumed commitments by him subscribed;

ALORS THAN any court decision must be motivated; that in his conclusions of appeal Mr BONVALLET argued that the transfer of 100,000 F and the two bank checks of 7,000 F and 12,000 F of August 18, 1989 had not been the subject of any order signed by him; that by not responding to this peremptory plea, which is the subject of a specific debate, the Court of Appeal violated article 455 of the New Code of Civil Procedure.

THE COURTYARD,

On the first plea, taken in its first branch:

Having regard to article 1315 of the Civil Code;

Whereas, according to the statements of the referred judgment and the productions, that, on August 17 and 18, 1989, the Rhône-Alpes Bank made a transfer of 100,000 francs from the current account that it had just opened in the name of Mr. Bonvallet for the benefit of a third party and two payments by cashier’s check; that in 1992, the Rhône-Alpes Bank made assign Mr. Bonvallet in payment of the balance of the account, become debtor, following these operations; that the latter claimed that the Rhône-Alpes Bank had proceeded without orders from his part and counterclaimed demanded compensation for damage consecutive to the blocking of his personal deposit account;

Whereas in order to condemn Mr. Bonvallet to pay to the Rhône-Alpes bank the amount of the debit balance of his bank account and to dismiss his claim for damages, the judgment holds that the bank justifies its claim by the production of the agreement to open said account bearing the client’s signature, as well as extracts from the latter establishing the existence of debits made and the absence of a transfer to his credit;

Whereas, by so ruling, without having investigated whether the account statements mentioning the disputed debits had indeed been sent to Mr. Bonvallet and whether the latter had refrained from any protest or reservation after their receipt, which would have resulted in that these debits had been made with his agreement and if so, if the person concerned provided evidence of such a presumption, the court of appeal did not give a legal basis for its decision with regard to the above-mentioned text;

FOR THESE REASONS, and without there being any need to rule on the other complaints:

BREAK AND CANCELED, in all its provisions, the judgment rendered on September 19, 1996, between the parties, by the Lyon Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the Court of Appeal of Chambéry;

Orders Banque Rhône-Alpes to pay the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the requests of Mr. Bonvallet and the Rhône Alpes bank;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the quashed judgment.

On the report of Mrs. Collomp, adviser, the observations of the SCP Parmentier and Didier, lawyer of Mr. Bonvallet, of the SCP Delaporte and Briard, lawyer of the Rhône-Alpes Bank, the conclusions of Mr. Feuillard, general counsel; M. DUMAS, President.

THE COURT OF CASSATION, COMMERCIAL CHAMBER. Limited training.

December 19, 2000. Judgment n ° 2204. Cassation.

Appeal No. 98-10.994.

On the appeal brought by the Société lyonnaise de Banque, a public limited company, whose registered office is at 8, rue de la République, 69001 Lyon,

in cassation of a judgment rendered on November 27, 1997 by the Rouen Court of Appeal (2nd civil chamber), in favor of the company Framo, whose head office is Eurochanel industrial zone, 17, rue J. Monod, 76378 Dieppe,

defendant in cassation;

The plaintiff invokes, in support of its appeal, the single plea of ​​cassation annexed to this judgment;

Medium produced by Me Le Prado, lawyer advising for the Société lyonnaise de Banque.

SINGLE MEANS OF TERMINATION

The plea criticizes the contested nursing judgment

TO HAVE rejected SOCIETE LYONNAISE DE BANQUE its request for payment of a bill of exchange accepted by the Company FRAMO,

FOR THE REASONS THAT the disputed effect of an amount of 67.957.80 francs drawn by Mr. MONTESSUIT on the Company FRAMO, which accepted it, was payable on November 30, 1993; that it was presented for collection by SOCIETE LYONNAISE DE BANQUE which had carried the amount to the credit of the current account n ° 588 8 00280 J which was holder in his books Mr. MONTESSUIT; that following its unpaid return, SOCIETE LYONNAISE DE BANQUE has – as can be seen from the extract from this account that the FRAMO Company obtained from Mr. MONTESSUIT – dated 3 December 1993:

– debit: the amount of the disputed instrument, plus costs, with the indication “Unpaid LCR transaction number B851703” and “value date 11.30.93”;

– then, six entries later, to the credit, the same amount, not increased, with the indication “transfer 2615043” and “value date 30.11.93”;

that SOCIETE LYONNAISE DE BANQUE cannot seriously dispute that these movements reflect a reversal of the bill, even assuming correct its assertion that it has also debited the amount from a special account (no. 3,53005 F); that indeed, in this last perspective, the chronology of the operations could only be the following: debit of the current account, registration to the debit of the special account and “transfer”, to the current account, of the amount thus registered;

that we would not explain otherwise:

– the changes which the SLB felt it necessary to accompany the preparation, for the needs of the cause, of another statement of the current account, in order to establish an appearance of simultaneity between the two entries which were made there and to attempt to ” accredit the idea that credit preceded debit;

– the wording and order of the writings made on the extract produced by the FRAMO Company, which will be the only one retained, and the sending to Mr. MONTESSUIT, five days after the date of the disputed writings, of a “transaction notice unpaid LCRs “confirming the entry of the amount of the bill, plus costs, to the debit of the current account, sending which was not followed by any correction;

that in the state of the transgression intervened, the company FRAMO can oppose to the bank the exceptions based on its personal relations with the drawer; it is established – and besides not disputed – that it had accepted effect disputed in payment of an invoice subsequently canceled;

THEN, ON THE ONE HAND, THAT the automatic entry of the amount of an unpaid bill to the debit of the account of the drawer is not sufficient to establish the desire of the discounting bank to reverse, since the latter immediately canceled this entry by lodging the amount of the instrument in a special account; that the Court of Appeal, basing itself on the fact that the drawer’s account had been debited with the amount of the bill of exchange noted and by referring to a chronology of the entries totally inoperative, without taking any account of the fact that the bank had, on the same day, canceled this entry and transferred the amount of the instrument to an IAR account, deprived its decision of any legal basis with regard to article 1134 of the Civil Code;

THEN, ON THE OTHER HAND, THAT, as the first judges had noted, the unpaid LCR transaction notice expressly specified that the debit entry from the account of Mr. MONTESSUIT, recorded automatically by computer would only become final after verification by the bank within eight days, without further notice; that by not giving an explanation on the aforementioned grounds attesting to the fact that the automatic entry of the amount of an unpaid instrument to the debit of the account in no way implied on the part of the banker the desire to reverse, the Court of The appeal once again tainted its decision with a lack of legal basis with regard to article 1134 of the Civil Code.

THE COURTYARD,

On the single means, taken in its two branches:

Having regard to article 1134 of the Civil Code,

Whereas, according to the judgment under appeal, the company Framo has, for the settlement of an advance on commission due to its commercial agent, Mr. Montessuit, in respect of a sale concluded by the latter under a suspensive condition, accepted a letter of exchange maturing on November 30, 1993 which the interested party had drawn; that the effect was taken with the discount by the company lyonnaise de bank with which the drawer had a current account; that the condition precedent having failed, the sale did not take place and that the Société lyonnaise de Banque, acting as a third party carrier, demanded payment to the company Framo;

Whereas, in order to reject the request of the Société lyonnaise de Banque, the judgment holds that following the return of the unpaid bill, the Société lyonnaise de Banque had carried it, on 3 December 1993 with a value date at November 30, 1993, the amount debited from his client’s current account and that even if this entry had been reversed with the same value date, after this same amount had been debited from an internal account allocated to bad debts, these movements of funds reflected the existence of a reversal so that the company Framo was justified in opposing the bank the exceptions based on its personal relationship with the drawer and therefore the subsequent cancellation of the invoice for the payment of which she had accepted the disputed effect;

Whereas by determining itself thus without investigating whether, as it was maintained, the operation provisionally debited from Mr. Montessuit’s current account on December 3, 1993, subject to verification by the bank, within eight days and canceled subsequently with the same value date, the amount of the unpaid bill having been provisionally posted to an internal account allocated to bad debts, was not explained only by the use of a computerized management system and if it revealed although the will of the bank to reverse the disputed effect, the Court of Appeal deprived its decision of legal basis with regard to the aforementioned text;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment delivered on November 27, 1997, between the parties, by the Rouen Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Caen;

Orders the company Framo to pay the costs;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the quashed judgment.

On the report of Ms. Collomp, adviser, the observations of Me Le Prado, lawyer of the Société lyonnaise de Banque, the conclusions of Mr. Feuillard, general counsel; M. DUMAS, President.

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