ENFORCEABILITY OF CONTRACTS AGAINST THIRD PARTIES
On the appeal brought by the company Prisma Presse, whose registered office is 6 Rue Daru, 75008 Paris, in cassation of a judgment rendered on 1 October 1997 by the Paris Court of Appeal (4th chamber – section A), in favor of : 1 ° / of the company Michael O’mara Books LTD, with registered office at 9 Lion Yard Tremadoc Road SW4 7NQ, London (Great Britain), 2 ° / of the limited company Plon, with registered office at 76 Rue Bonaparte, 75006 Paris, defendants at the cassation;
The plaintiff invokes, in support of its appeal, the two grounds of cassation annexed to this judgment;
Means produced by Me Blondel, lawyer at the Councils for the company Prisma press;
FIRST MEANS OF BREAKING:
The judgment under appeal is criticized for having said the company PRISMA PRESSE ill-founded in its challenge to the quality of action of the companies MICHAEL O’MARA BOOKS and PLON;
FOR THE REASONS That in the absence of any claim on the part of the author of the work, the acts of commercialization are likely to make presume with regard to the infringing third parties, that the aforementioned companies are holders of the works , whatever their qualification, of the intangible property right of the author; that the company MICHAEL O’MARA BOOKS LIMITED moreover and overwhelmingly demonstrates by the production of a contract dated May 27, 1994 that it holds from the company BEDINGFIELD LTD which represents Andrew MORTON as attested by a letter written by the ‘author himself on January 23, 1995, the exclusive and worldwide right to make, print, publish and sell in paperback form in all languages and throughout the world the work entitled’ DIANA – HER NEW LIFRE (DIANA – HIS NEW LIFE); that the contract dated July 29, 1994 between the company MICHAEL O’MARA BOOKS LIMITED and the company EDITIONS OLIVIER ORBAN bookstore PLON also proves that the latter has the right to publish and sell this same work in French version in all countries of the world; that the company PRISMA PRESSE must also be seen to apply the provisions of article 1165 of the civil code which provide that the conventions have effect only between the contracting parties; that being foreign to the aforementioned contracts, it cannot therefore, unless it can demonstrate what it does not do, either that the aforesaid agreements have harmed it, or that it is entitled to benefit from the provisions provided for by article 1121 of the civil code, invoke the existence or the benefit; that it is therefore not in law as it does to invoke for its benefit the provisions of Article 1131 of the Civil Code which aim at the unlawful cause of contracts to which it is not party; that the judgment which declared the action brought by the companies MICHAEL O’MARA BOOKS LIMITED and the company PLON admissible must therefore be confirmed;
WHEREAS, ON THE ONE HAND, seized of a tort action, the Court of Appeal could not without violating articles 1382 of the Civil Code, 32 of the new Code of Civil Procedure and L. 335-2 of the Code of intellectual property to establish its admissibility by referring to the infringement regime;
WHEREAS, ON THE OTHER HAND, only legally formed agreements are the law of the parties, so that a third party sought in payment of damages on the basis of the breach of a contract to which he was not a party nevertheless finds in article 1134 of the Civil Code quality to oppose the nullity of this contract without applying the principle of the relativity of the conventions; that by declaring that the company PRISMA PRESSE could not invoke in defense the nullity of the contracts, for violation of article 1131 of the Civil Code, to which it was not a party, the Court violates articles 1134 and 1165 of the Civil Code, together Article 32 of the new Code of Civil Procedure;
WHEREAS, AS THE LAST PART, in any event, assuming that a third party can only invoke the existence of a convention if it harms him, the Court could not affirm, without violating Article 1165 of the Civil Code, that the company PRISMA PRESSE did not demonstrate that the agreements between the author and the English and French publishers were harmful to it, since these very agreements justified the admissibility of the claim for payment of damages.
SECOND MEANS OF TERMINATION:
The judgment under appeal is criticized for having said that the company PRISMA PRESSE caused the company MICHAEL O’MARA BOOKS LTD and the company PLON damage for which it owed them compensation and, consequently, condemned the company PRISMA PRESS payable to the company MICHAEL O’MARA BOOKS LTD 1,500,000 francs and to the company PLON 500,000 francs;
FOR THE REASONS That the companies MICHAEL O’MARA BOOKS LIMITED and PLON accuse the appellant company of having committed a tort, on the one hand by revealing on the cover of the weekly ‘VOICI’ n ° 362 dated October 17, 1994 the divorce of the Prince and the Princess of Wales with the mentions ‘World exclusivity’ ‘The terms of her divorce’, and on the other hand by revealing on four pages in an article written in the above-mentioned number certain confidential information, then that she knew full well infringing the rights of third parties by suggesting that she was authorized to disclose the revelations contained in the work of Andrew MORTON; that the publishing companies are entitled to decide in accordance with the terms of the contracts which bind them with the author of the means and conditions for the distribution of the work they publish; that the attitude of the PLON company, which suspected that a copy of the book was circulating in the public before the date of publication and which reminded certain press organs that they were prohibited from revealing extracts of the said book is in accordance with needs that she felt to continue to have the context in which the distribution of the book should, according to her, be carried out to the public; that if the respondent companies cannot reproach the company PRISMA PRESSE for wanting to disseminate, using personal journalistic research, information exclusively worldwide on the terms of the divorce of the Prince and the Princess of Wales, on the other hand, they are well founded in contesting the latter’s right to draw this information from the work written by Andrew MORTON which they intended to be published only on November 15, 1994, both in FRANCE and in ENGLAND, after having previously for advertising purposes contractually authorized the publication of certain extracts from the book in various French and foreign newspapers; that reading pages 6 to 9 of n ° 362 of the weekly ‘VOICI’ reveals that the company PRISMA provides these readers, not the exclusive fruit of its research or of its personal investigations on the modalities of the Prince’s divorce and from the Princess of Wales, but information contained only in the forthcoming book written by Andrew MORTON; that the express references made by the author of the article in the book written by Andrew MORTON demonstrate that the company PRISMA PRESSE was, and no matter by what means, in possession of the said work or at the very least of its content which should not be deflowered before November 15, 1994 as recalled by the letter from the PLON company dated October 14, 1994; that if indeed, as the company PRISMA PRESSE maintains, it has not distributed extracts from the book written by Andrew MORTON, it has, moreover expressly recognized in its conclusions of appeal since it writes: ‘Waited in this regard, that even if the article mentions information taken from the book of Mr. Andrew MORTON, this fact does not entail any fault on the part of the company PRISMA PRESSE ‘, disseminated confidential information drawn exclusively from the book of Andrew MORTON which should , by the express wish of the publishers who held exclusive rights to the book, to remain secret until the date of November 15, 1994; that the company PRISMA PRESSE could not without disregarding the provisions provided for by article 1165 of the Civil Code claim to be exempt from any liability by supporting as it does that the contracts concluded between the English publisher, the author, the publisher French and other newspapers or publications have an illicit cause; that the behavior of the company PRISMA PRESSE is manifestly disloyal and constitutes a tort fault; article 1165 of the Civil Code claim to be exempt from all liability by maintaining as it does that the contracts concluded between the English publisher, the author, the French publisher and other newspapers or publications have an illegal cause; that the behavior of the company PRISMA PRESSE is manifestly disloyal and constitutes a tort; article 1165 of the Civil Code claim to be exempt from all liability by maintaining as it does that the contracts concluded between the English publisher, the author, the French publisher and other newspapers or publications have an illegal cause; that the behavior of the company PRISMA PRESSE is manifestly disloyal and constitutes a tort fault;
ALORS THAT, ON THE ONE HAND, only legally formed agreements make the law of the parties, so that a third party brought in payment of damages on the basis of the breach of a contract to which he was not a party nevertheless finds in article 1134 of the Civil Code quality to oppose the nullity of this contract without applying the principle of the relativity of the conventions; that by declaring that the society PRISMA PRESSE could not invoke in defense the nullity for unlawfulness of the cause of the contracts to which it was not party, the Court violates Articles 1134 and 1165 of the Civil Code;
ALORS THAT, ON THE OTHER HAND, does not in itself constitute a fault constituting an act of unfair competition the disclosure of information by a third party despite a confidentiality clause binding only the parties to the contract even though the third party was aware of the existence of the said clause; that the Court of Appeal finds that the society PRISMA PRESSE was third to the conventions comprising a confidentiality clause concluded between the English publisher, the author, the French publisher and other newspapers; that it also notes that the company PRISMA PRESSE did not engage in acts of counterfeiting, having diffused no extract of the book written by Andrew MORTON; that
WHEREAS, OF LAST PART and in any event, by considering that the means by which the company PRISMA PRESSE had come into possession of the work of M. MORTON did not matter, without finding that the company PRISMA PRESSE illegally procured the book or even if it illicitly obtained information on the content of the said book, the Court does not legally justify its decision with regard to article 1382 of the Civil Code, which was violated.
THE COURT, in the public hearing of July 4, 2000, where were present: Mr. Lemontey, president, Mr. Ancel, adviser rapporteur, MM. Renard-Payen, Durieux, Mme Bénas, MM. Guérin, Sempère, Bargue, advisers, Ms Cassuto-Teytaud, Barberot, Catry, referendum advisers, Mr Gaunet, advocate general, Ms Aydalot, chamber clerk;
On the first plea, taken in its three branches:
Whereas, according to the trial judges, the weekly ‘Here is’, published by the company Prisma press, published an article containing information relating to the Princess of Wales; that the companies Michael O’Mara books Ltd and Plon, invoking their exclusive right to publish a work by Mr. Andrew Morton, entitled ‘Diana -Her new life’, hence the information published by the weekly ‘Here ‘, shortly before the publication of the book in France, would have been unduly extracted, obtained from the Court of Appeal (Paris, October 1, 1997) the condemnation of the company Prisma Press to damages;
Whereas the company Prisma presse criticizes this judgment for having rejected the plea of inadmissibility opposed to the publishers, alleging the nullity of the publishing contracts, by incorrectly referring to the right of counterfeiting, and by making a false application the rule of the relative effect of contracts;
But given that the Court of Appeal deduced the admissibility of the action of the companies Michael O’Mara books and Plon from the publishing contracts concluded with the author of the work, taking for their benefit the exclusive right to exploit this work; that the judges of the second degree thus based their decision with regard to the only plea of inadmissibility raised by the company Prisma press in its conclusions, based on a lack of quality to act of the companies Michael O’Mara books and Plon, for lack of justify the rights that they hold on the disputed work; that thus, independently of the reasons overabundants referring to counterfeiting, not invoked in this case, the Court of Appeal has, on this point, legally justified its decision;
And on the second means, taken in its three branches:
Whereas the Court of Appeal is still accused of having held the Prisma Press company responsible for the publication of information contained in Mr. Morton’s book, while the Prisma Press company held the article 1134 of the Civil Code the right to oppose the nullity of the publishing contract, while the disclosure of the information was not faulty, in the absence of violation of the publishers’ reproduction rights, and while the confidentiality agreement with regard to these the information did not bind the company Prisma presse, third party to the contract, and that it was not established that the company Prisma presse had obtained the work illegally;
But expected that the Court of Appeal noted that the disputed article was not the result of personal investigations, but the resumption of information contained in the work, to appear, of Mr. Morton; that the judges of the second degree were therefore able, applying the principle of opposability of agreements to third parties, retain the fault of the company Prisma press with regard to the holders of the right to publish the work, for having disclosed information drawn from a work that the publishers were preparing to disseminate, thus depriving this publication of part of its originality and of its interest ;
That the plea is therefore unfounded;
FOR THESE REASONS :
DISMISSES the appeal;
Orders the company Prisma Presse to pay the costs;
Considering article 700 of the new Code of Civil Procedure, condemns the company Prisma Presse to pay to the companies Michael O’mara Books LTD and Plon the total sum of 15,000 francs.
On the report of Mr. Ancel, advisor, the observations of Mr. Blondel, lawyer of the company Prisma Presse, of Me Bernard Hémery, lawyer of the company Michael O’mara Books LTD and of the company Plon, the conclusions of Mr. Gaunet , Advocate General, and after having deliberated in accordance with the law; M. LEMONTEY, president.
