JURISPRUDENCE 2005 to 2017(1)
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JURISPRUDENCE 2005 to 2017

Whereas, according to the referred judgment, rendered in last resort, the company Cazenave (the recipient) bought and paid to the company Debargue (the sender) a merchandise which was transported free of charge by the company Transports Guidez (the valet ); that after the judicial liquidation of the sender, the carrier assigned the recipient in payment of the freight; that the court rejected the request;

On the single means, taken in its first branch:

Having regard to article L. 132-8 of the French Commercial Code;

Whereas to reject the request, the judgment holds that the documents provided by the carrier are only receipts of delivery slips, that there could be no agreement on the price of the transport since it was not known to the the shipper, that Article L. 132-9 of the Commercial Code lists the information which must appear on a consignment note including the price, and that there is therefore no contract of carriage;

Whereas by ruling thus, after having noted that the company Cazenave was recipient of the transported goods, which it results that it was party to a contract of transport, the court did not draw the legal consequences of its findings;

And on the middle, taken in its second branch:

Having regard to article L. 132-8 of the French Commercial Code;

Whereas to reject the request, the judgment holds that in principle, if a company which places an order with a supplier, the only interlocutor, is delivered free and pays it normally, it does not commit any fault and we would not understand why she would have to pay for the transport a second time; that it also retains that the contract between the parties is the invoice between the sender and the recipient, that the latter includes the price of the goods free of charge, that it is the essential element of the agreement, that Article L. 132-9 of the Commercial Code lists the particulars which must appear on a consignment note, the price of which,

Whereas by ruling thus, while the recipient is guarantor of the payment of the price of the transport towards the valet , the court violated the aforementioned text;

FOR THESE REASONS :

BREAK AND ANNUL, in all its provisions, the judgment rendered on August 5, 2003, between the parties, by the Commercial Court of Pau; 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 commercial court of Tarbes;


Chairman: Mr. Tricot
Rapporteur: Mr. de Monteynard, referendum advisor
Advocate General: Mr. Jobard
Advocate (s): Me Jacoupy


Lyon Court of Appeal
CIV.3

Public hearing of March 9, 2006


Appeal number:
Published by the Documentation and Studies Department of the Court of Cassation

COURT OF APPEAL OF LYON Third Civil Chamber JUDGMENT OF 09 March 2006Decision referred to the Court: Judgment of the Commercial Court of BOURG EN BRESSE of February 27, 2004 – No role: 2002/743 No RG:

04/03075

Nature of appeal: Appeal

APPELLANT: The Company DISTRIBUTION CASINO FRANCE, SAS 24 rue de la Montat 42100 SAINT-ETIENNE represented by Me Christian MOREL, attorney at the Court assisted by Me FERRET, lawyer at the bar of MONTBRISON

RESPONDENT: SCP BELAT and DESPRAT, judicial representative, acting as judicial liquidator of the company TRANAFIS SA appointed to this function following judgment of the Commercial Court of BOURG EN BRESSE of September 24, 2004 22, rue du Cordier BP 107 01003 BOURG -EN-BRESSE CEDEX represented by SCP JUNILLON-WICKY, attorneys at the Court assisted by Me VENUTTI, lawyer at the bar of BOURG-EN-BRESSE Investigation closed on October 04, 2005 Public hearing of January 18, 2006 THE THIRD CHAMBER OF THE COUR D ‘CALL FROM LYON, COMPOSITION OF THE COURT during the debates and deliberation: Mr. ROBERT, President, Mr. SANTELLI, Advisor Mrs. CLOZEL-TRUCHE, Advisor DEBATES: at the public hearing of January 18, 2006 CLERK:the Court was assisted during the debates of Miss X …, Registrar, JUDGMENT:

CONTRADICTORY pronounced publicly by making the judgment available to the Registry of the Court on March 9, 2006, the parties having been previously notified under the conditions provided for in the second paragraph of article 450 of the New Code of Civil Procedure signed by Mr. ROBERT , President, and by

Miss X …, Registrar, to whom the minute of the decision was handed over by the signing magistrate. STATEMENT OF THE LITIGATION – PROCEDURE – CLAIMS OF THE PARTIES

The TRANAFIS company was commissioned between March and July 2000 by the REZZOLI company, to which it invoices for its services, to transport fresh products to the CASINO stores.

By judgment of July 13, 2000, the Commercial Court of MARSEILLE pronounced the reorganization of the company REZZOLI.

On July 20, 2000, TRANAFIS declared its claim to the creditors’ representative of REZZOLI for an amount of 94,223.81 euros (618,067.05 francs), including up to 12,355.03 euros (81,043.66 francs including tax) the aforementioned deliveries.

The claim of the company TRANAFIS was definitively admitted to the liabilities of the company REZZOLI on November 14, 2001 in the amount of 19,789.88 euros (129,813.12 francs).

Not having paid for its deliveries, the company TRANAFIS in application of article L.132-8 of the Commercial Code requested from the company DISTRIBUTION CASINO FRANCE the payment of the sums due to it.

By deed of February 1, 2001, the company TRANAFIS summoned the company DISTRIBUTION CASINO FRANCE in summary proceedings before the President of the Commercial Court of BOURG-EN-BRESSE, who issued an order on June 19, 2001 ordering it to pay the plaintiff to as a provision the sum of 12,355.03 euros (81,043.66 francs plus interest, which she paid, while noticing the appeal.

The Court was to reduce the sentence to the sum of 10,832.27 euros. By order of December 10, 2001, the Execution Judge of the Tribunal de Grande Instance of BOURG-EN-BRESSE authorized the company DISTRIBUTION CASINO FRANCE to carry out a protective seizure between

the hands of the company TRANAFIS.
By deed of January 15, 2002, the company DISTRIBUTION CASINO FRANCE brought proceedings against the company TRANAFIS before the Commercial Court of BOURG-EN-BRESSE for it to be ordered to reimburse it the sum of 12,355.03 euros, in addition to interest from July 2, 2001 request that the court by judgment of February 27, 2004 rejected by condemning it under article 700 of the New Code of Civil Procedure.Appeal was relieved by the company DISTRIBUTION CASINO FRANCE of this decision on May 7, 2004.

On September 24, 2004, the Commercial Court of BOURG-EN-BRESSE declared the judicial liquidation of the company TRANAFIS.
SCP BELAT ET DESPRAT has been appointed as liquidator. By exploit of January 10, 2005, the company DISTRIBUTION CASINO FRANCE summoned the SCP BELAT ET DESPRAT in this capacity so that it appears before the Court by ministry of lawyer constituted.
The SCP BELAT ET DESPRAT ex officio formed the SCP JUNILLON & amp; WICKY, solicitors, previously incorporated for the company TRANAFIS.
In its conclusions of August 24, 2004, the company DISTRIBUTION CASINO FRANCE supports:
– that the production by the company TRANAFIS of its claim to the collective proceedings of the company REZZOLI for transport is irregular in that it has not justified its claim, which corresponded to a residual balance of the current account that existed between the company TRANAFIS and the company REZZOLI
– that in addition the company TRANAFIS, not having replied to the representative of the creditors of the company REZZOLI who contested its claim and who proposed to reject it, was no longer entitled to
discuss before the judge-commissioner, so that this claim has been dismissed
– that the company TRANAFIS has recognized itself as a debtor towards the company REZZOLI at the rate of operations subsequent to the insolvency proceedings of the company REZZOLI, so that the current account established with the company TRANAFIS cannot establish a claim prior to the opening of the insolvency proceedings of the company REZZOLI
– that having no debt on the company REZZOLI, the company TRANAFIS can no longer claim anything from the recipient of the goods under Article L. 132-8
– that if it pays the carrier it must be subrogated in the rights of the company TRANAFIS over the company REZZOLI, which amounts to saying that it must benefit from the payments promised by the company REZZOLI to its creditors in execution of its recovery plan
– that the company TRANAFIS, having allowed to lose its right of claim on the company REZZOLI due to an irregular production, thus infringed the right of subrogation of the company DISTRIBUTION CASINO FRANCE – that it is therefore, as a surety, discharged from his obligations, with regard to a creditor who by his fact no longer allows subrogation to be brought into play in his favor
– that the company TRANAFIS, withdrawing the sums which were due to it under article L. 132-8 from the amount of its final production, contributed to the extinction of the rights of the recipient.
She considers that it is therefore wrong that she acquitted, in view of a decision taken in summary proceedings, the sum of 12,567.95 euros.
She contests the validity of the consignment note, which did not contain a statement of a price, which prevents her from verifying the exact cost of the transport. she concludes that the contract was not formed.
She requests the reformation of the judgment referred by the condemnation of the company TRANAFIS to reimburse the sum of 12,567.95 euros. In its conclusions of April 29, 2005, SCP BELAT ET DESPRAT, liquidator of the company TRANAFIS, maintains:
– that the company DISTRIBUTION CASINO FRANCE is out of debate, when it claims that the declaration of debts it made to the collective proceedings of the company REZZOLI is irregular
– that in any case its claim has been definitively admitted to the liabilities of the company REZZOLI
– that the company DISTRIBUTION CASINO FRANCE has not contested through the third party opposition this claim within 8 days of filing the statement of claims of the company REZZOLI
that it is by Article L.132-8 of the Commercial Code creditor of the company DISTRIBUTION CASINO FRANCE, the carrier benefiting from a personal and direct action against the recipient, without being obliged to declare her claim to the insolvency proceedings of the principal, which she did however
– that the company DISTRIBUTION CASINO FRANCE does not dispute that the transport has been carried out and that the amount claimed corresponds to the transport
It concludes that the deferred judgment is confirmed by adding to it the condemnation of the respondent company to pay it the sum of 300 euros for abusive proceedings. REASONS FOR DECISION
I / At the request of the company DISTRIBUTION CASINO FRANCE for reimbursement of the sum it paid to the company TRANAFIS:
Whereas if the consignment note forms by virtue of article 132-8 of the commercial code a contract between the sender, the carrier and the
recipient or between the sender, the recipient, the broker and the valet, the absence on the writing given to the valet by the sender of the mention of the price of the transport, provided for by article L132-9 of the commercial code , does not cause it to lose its consignment note effects by this sole fact, since it is not prescribed on pain of nullity and in this case the sender and the carrier do not dispute that a price had been agreed for this transport – that the respondent cannot therefore claim that the contract of transport would not have intervened – that the plea raised by it according to which the contract would thus not be opposable to him must be rejected;
Whereas article L. 132-8 of the Commercial Code provides that the carrier has a direct action in payment of his services against the sender or the recipient who are responsible for the price of the transport;
Whereas the carrier is not required to have to declare his claim to the sender’s receivership in order to act in respect of the direct action against the recipient – that the company DISTRIBUTION CASINO FRANCE cannot therefore complain to the company TRANAFIS an alleged irregularity in the procedure for admitting its debt to the receivership of the sender the company REZZOLI for not having responded to the creditors’ representative who contested this debt, which would deprive it of the possibility of being subrogated in the rights of the company REZZOLI;
Whereas the direct action is not conditional on the right of subrogation that the addressee would have against the sender, but is exercised independently – that the payment to which this addressee is bound does not in fact give him any right in this regard – that the debate initiated in this regard by the company DISTRIBUTION CASINO FRANCE is therefore unrelated to the present dispute – that the fact that the
claim of the company TRANAFIS was definitively admitted by order of the judge-commissioner of November 14, 2001 to the liabilities of the company REZZOLI for an amount of 20,385.66 euros (133,721.18 francs) is for the appellant without effect – that it has no grounds for contesting the validity of this admission;
Whereas the company DISTRIBUTION CASINO FRANCE cannot avail itself of article 2037 of the Civil Code that only the deposit can be invoked for its benefit and which cannot be extended within its scope;
Whereas the company DISTRIBUTION CASINO FRANCE does not dispute that the transport operation carried out by the company TRANAFIS was made for its benefit nor that the amount claimed corresponds to this transport – that the appellant is therefore not justified in requesting the restitution of the sum that it was ordered to pay to the company TRANAFIS under the direct action of article L132-8 – that the company TRANAFIS being in compulsory liquidation, no demand for payment could be directed against it ;
Whereas it is appropriate to confirm consequently the referred judgment, which dismissed the company DISTRIBUTION CASINO FRANCE of its requests;
II / At the request of SCP BELAT ET DESPRAT in its capacity as liquidator of the company TRANAFIS for damages:
Whereas the SCP BELAT ET DESPRAT ex officio does not justify a compensable damage which would result from the abuse of the company DISTRIBUTION CASINO FRANCE to act in reimbursement of what it paid to the company TRANAFIS – that consequently it is unfounded in its claim for damages and must be dismissed;
III / On other requests:
Whereas it would be unfair for the SCP BELAT ET DESPRAT ex officio to bear the burden of its irrecoverable appeal costs and that it is therefore necessary to allocate it a sum of 1,800 euros under article 700 of the New Code Civil Procedure, which will be added to that granted by the first judge to the company TRANAFIS;
Whereas the company DISTRIBUTION CASINO FRANCE must be ordered to pay the costs; FOR THESE REASONS THE COURT,
Confirms in all its provisions the judgment referred,
Adding,
Declares SCP BELAT ET DESPRAT in its capacity as liquidator of the company TRANAFIS ill-founded in its claim for damages and rejects it,
Orders the company DISTRIBUTION CASINO FRANCE to pay SCP BELAT ET DESPRAT the sum of 1800 euros under article 700 of the New Code of Civil Procedure and to bear the costs which will be recovered by SCP JUNILLON & amp; WICKY, admitted, in accordance with the provisions of article 699 of the New Code of Civil Procedure.
THE CLERK,
PRESIDENT,
MPX ..
H. ROBERT

Orlans
COMM Court of Appeal

Public hearing of January 19, 2006

Appeal number:
Published by the Documentation and Studies Department of the Court of Cassation
Advise. Registrar: Mrs Nadia X …, during the debates and the delivery of the judgment. DEBATES: At the public hearing of January 5, 2006. JUDGMENT: Reading of the judgment at the public hearing of January 19, 2006 by Mr. President REMERY, in application of the provisions of article 452 of the New Code of Civil Procedure. STATEMENT OF THE LITIGATION:
The Court rules on the appeal of a judgment of the Commercial Court of Montargis (instance no 1323/2003) delivered on 5
November 2004, filed by the company CO.PL.IN. Cortinovis Plastiques Ingénierie (Coplin company), according to declaration of January 21, 2005 (no 518/2005), then by the company Arvinmeritor light vehicle systems France (Arvinmeritor company), according to declaration of May 11, 2005 (no 1667/2005), both instances 518 & amp; 1667/2005 having been joined by order of the pre-trial magistrate of June 28, 2005. For the full account of the facts, the procedure, the claims and the means of the parties, it is expressly referred to the decision referred and to the latest conclusions of the parties served and filed on: * September 6, 2005 (Arvinmeritor company), * December 21, 2005 (Coplin company), * December 23, 2005 (Taxicolis company, coming to the rights of the company Taxicolis Sud-Est); In this judgment, it will only be recalled that in August and September 2002, the company Taxicolis Sud-Est, to whose rights the company Taxicolis is, organized the transport of goods entrusted, according to it, by the company Moll Industries to destination of the companies Arvinmeritor and Coplin and the goods which would have been entrusted by the latter to the company Moll Industries. This one, put in receivership by judgment of October 10, 2002 of the Commercial Court of Villefranche-sur-Saône, not having paid the price of transport, the company Taxicolis, after having paid this one to the carriers, has, for the benefit of its subrogation in their rights, claimed from the Coplin company the sum of 1,152.06 ç and from the Coplin and Arvinmeritor in solidum companies that of 14,695.37 ç This request was granted, in addition to interest at the legal rate from the summons of April 17, 2003, by the judgment undertaken, the companies Coplin and Arvinmeritor appealed against it. In appeal, each party presented the requests and means which will be exposed and discussed in the reasons below. The investigation was closed by ordinance of January 4, 2006, as well as the attorneys the Coplin and Arvinmeritor companies have appealed against it. In appeal, each party presented the requests and means which will be exposed and discussed in the reasons below. The investigation was closed by ordinance of January 4, 2006, as well as the attorneys the Coplin and Arvinmeritor companies have appealed against it. In appeal, each party presented the requests and means which will be exposed and discussed in the reasons below. The investigation was closed by ordinance of January 4, 2006, as well as the attorneys
parties have been notified. REASONS FOR THE JUDGMENT: On the procedure:
Whereas, in its last conclusions, the company Taxicolis does not support the inadmissibility of the appeal of the company Arvinmeritor, although the latter explains it in view of the first trivial conclusions, tending to the inadmissibility and to the confirmation, served by the company Taxicolis, but which did not develop an argument on this head, and that nothing in the file allows this admissibility to be called into question; On the merits: On the right of the company Taxicolis to bring a direct action for payment against the companies Coplin and Arvinmeritor: Whereas, as regards the company Coplin, that, in all the consignment notes paid to the proceedings and other transport documents, and which concern the present proceedings, all documents produced in parallel proceedings no 1576/2005 and relating to other transports, giving rise to another judgment of the same day, being excluded, the company Coplin, a simple subcontractor of the company Moll Industries, does not appear as recipient only once for a transport of August 14, 2002 and never as a sender, in one sense or another, whether to the company Moll Industries or, more often to the company Arvinmeritor, which is the customer of the Moll Industries company, to which the latter sometimes had the parts machined by the Coplin company delivered directly; that the latter therefore did not intervene, as the transport documents reveal, that as simple remettante to the transporter chosen by the company Taxicolis, order of the company Moll industries, goods being in its factory, simple place of removal, destined mainly for the company Arvinmeritor; that, consequently, never having had the capacity of shipper, contrary to what is supported by the two other parts, the company Coplin cannot be held to pay, in this respect, the price of transport to
carriers or to the company Taxicolis, freight forwarder subrogated in their rights on the basis of Article L. 132-8 of the Commercial Code; that it can owe to the latter, with interest at the legal rate from the summons of April 17, 2003, only the sum of 426.80 FF HT, i.e. 510.45 TTC or 77.82 ç, as recipient for the only service performed on August 14, 2002; that, on this point, the Coplin company does not raise any dispute, recognizing, on the contrary, at p. 3 of its conclusions, below, to have been a party, as recipient, to the contract of carriage and not contesting the applicability to it of the provisions of Article L. 132-8 of the Commercial Code on direct action in payment of the carrier only in the event that the Court retains his capacity as shipper, which is not the case; that, for the payment of this sum, no joint judgment or in solidum can not be pronounced against the company Arvinmeritor, which was not concerned by the provision of transport here in question; Whereas, as regards the company Arvinmeritor, that this one does not dispute either its capacity of recipient for all the transports concerned by the request of the company Taxicolis, nor that of forwarding agent of the latter, whereas, in the parallel instance no 1576/2005, it developed ambiguous conclusions on this last point; that, therefore, the company Arvinmeritor, which does not take into account, in its pleadings, of the judgment of the Commercial Chamber of the Court of Cassation of 2 June 2004 (Bull. civ IV, no 114), which rejected in advance the argument it supports, cannot claim that the company Taxicolis could not act on the basis of Article L. 132-8 of the Commercial Code; that, if it is true, in fact, that only the carrier has, against the addressee, the direct action for payment provided for by this text, neither the latter, nor any 132-8 of the French Commercial Code; that, if it is true, in fact, that only the carrier has, against the addressee, the direct action for payment provided for by this text, neither the latter, nor any 132-8 of the French Commercial Code; that, if it is true, in fact, that only the carrier has, against the addressee, the direct action for payment provided for by this text, neither the latter, nor any
principle prohibits the broker who has paid the cost of his services to the carrier from exercising this action by subrogation, without being able to oppose his own absence, by hypothesis, of default with regard to the carrier, which would make allegedly obstacle to the subrogation in the rights of this one, nor to subordinate the subrogatory exercise of the direct action by the commission agent to the proof of the default of its own principal, the company Moll Industries, in this case or the Coplin company, as it is sometimes wrongly argued; that, in principle, the request of the company Taxicolis is therefore admissible against the recipient and the latter has no recourse in guarantee against the company Coplin, who did not have the quality of sender; On the quantum of the conviction of the company Arvinmeritor: Whereas the company Arvinmeritor raises two disputes on this point; That the first, already supported in parallel proceedings no 1576/2005, was rejected there by a reason which will be repeated here; that indeed, without developing a precise dispute, but on the sole ground that the same documents would be paid by the company Taxicolis in support of two actions in payment, each being the subject of a judgment of this Court of the same day , this one and that given in the case no 1576/2005, the company Arvinmeritor maintains that the company Taxicolis would seek to be paid twice, whereas, in spite of the identity of certain documents submitted in the two instances, none of the services in question here, the subject of separate invoices dated from August to September 2002, is the subject of a complaint in the other instance, as is clear from comparison of parts; whereas this first dispute should be dismissed; That the second, which had not been developed in the other instance no 1576/2005, at least in admissible conclusions, consists in maintaining that the company Taxicolis should deduct its commission from the amount of the price of transport; it results from the comparison of the parts; whereas this first dispute should be dismissed; That the second, which had not been developed in the other instance no 1576/2005, at least in admissible conclusions, consists in maintaining that the company Taxicolis should deduct its commission from the amount of the price of transport; it results from the comparison of the parts; whereas this first dispute should be dismissed; That the second, which had not been developed in the other instance no 1576/2005, at least in admissible conclusions, consists in maintaining that the company Taxicolis should deduct its commission from the amount of the price of transport;
that, on this point, if it is true that the way of subrogation in the rights that the carrier derives from article L.132-8 of the Commercial Code does not authorize the commission agent to make bear either to the shipper, or to the addressee, his own commission, since the subrogation only takes place up to the amount paid, which, being a sum paid to carriers, can only include the price of transport, it does not include there is no need, as requested by the Arvinmeritor company, to operate a ventilation here; that indeed, it results from the documents in the file – in particular the letters by which each carrier acknowledged having received the price of the transport concerning him – that the company Taxicolis does not claim from the recipient more than the total price of transport, without including its profit margin or the price of its commission, nothing establishing, in the present case, that it would have made it bear in fact to each valet; that the subrogatory recourse on which this judgment rules therefore only takes place up to the price of transport, i.e. the sum of 14,695.37 ç including tax which will be charged to the company Arvinmeritor and will be productive of interest at the legal rate from the summons of April 17, 2003; that the judgment on this point should be confirmed; On accessory requests:Whereas the company Arvinmeritor will bear the costs of appeal, to the exclusion of those relating to the claims made against the company Coplin, which will be borne in full by the company Taxicolis, given the very reduced reception of its claims against him; that in addition, the society Arvinmeritor will pay the society Taxicolis the sum of 1.500 ç on the basis of the provisions of Article 700 of the new Code of Civil Procedure, any other request on this same basis being rejected; FOR THESE REASONS: THE COURT, RULING publicly, by contradictory judgment and rendered as a last resort: Partially REJECTING the judgment

undertaken: CONDEMNS the company CO.PL.IN. Cortinovis Plastiques Ingénierie (Coplin company) to pay the Taxicolis company the sum of 77.82 ç including tax, with interest at the legal rate from April 17, 2003; CONDEMNS the company Arvinmeritor light vehicle systems France (company Arvinmeritor) to pay to the company Taxicolis the sum of 14,695.37 ç including tax with interest at the legal rate as of April 17, 2003; REJECTS all other requests of the parties; CONDEMNS the company Arvinmeritor to pay the costs of first instance and appeal, except those concerning the company Coplin, which will be borne by the company Taxicolis; CONDEMNS the Arvinmeritor company to pay the Taxicolis company the sum of 1,500 ç by application of the article 700 of the new Code of Civil Procedure and REJECTS any other request presented on this basis; GRANTS, to the above extent, to SCP Laval-Lueger and Desplanques-Devauchelle, holders of an attorney’s office at the Orléans Court of Appeal, the right to direct debit recognized by article 699 of the new Code of Civil Procedure ; AND this judgment was signed by Mr. Rémery, President and Mrs. X …, Registrar having attended the delivery of the judgment. THE CLERK article 699 of the new Code of Civil Procedure; AND this judgment was signed by Mr. Rémery, President and Mrs. X …, Registrar having attended the delivery of the judgment. THE CLERK article 699 of the new Code of Civil Procedure; AND this judgment was signed by Mr. Rémery, President and Mrs. X …, Registrar having attended the delivery of the judgment. THE CLERK

PRESIDENT

Lyon Court of Appeal
CIV.3

Public hearing of January 12, 2006

Appeal number:
Published by the Documentation and Studies Department of the Court of Cassation
COURT OF APPEAL OF LYON Third Civil Chamber JUDGMENT OF January 12, 2006
Decision referred to the Court: Judgment of the Commercial Court of LYON of June 15, 2004 – No role: 2002j2472 No RG: 04/04557
Nature of appeal: Appeal
at the public hearing of November 25, 2005 REGISTRAR: the Court was assisted during the debates of Miss X …, Registrar JUDGMENT: CONTRADICTORY pronounced publicly by making the judgment available to the Registry of the Court on January 12, 2006, the parties having been previously notified under the conditions provided for in the second paragraph of article 450 of the New Code of Civil Procedure signed by Mrs. FLISE, President, and by Miss X …, Registrar, to whom the minute of the decision was delivered by the signing magistrate. FACTS, judgment at the registry of the Court on January 12, 2006, the parties having been previously notified under the conditions provided for in the second paragraph of article 450 of the New Code of Civil Procedure signed by Mrs. FLISE, President, and by Miss X … , Registrar, to whom the minute of the decision was handed over by the signing magistrate. FACTS, judgment at the registry of the Court on January 12, 2006, the parties having been previously notified under the conditions provided for in the second paragraph of article 450 of the New Code of Civil Procedure signed by Mrs. FLISE, President, and by Miss X … , Registrar, to whom the minute of the decision was handed over by the signing magistrate. FACTS,
PROCEDURE AND CLAIMS OF THE PARTIES
CEDILAC manufactures and packages food products based on milk and its derivatives, as well as food drinks such as fruit juices. The business of ORJUS is the distribution of food drinks, in particular fruit juices. The CEDILAC company and the ORJUS company have had a business relationship for several years under a shaping contract, the CEDILAC company ensuring the reconstitution and / or packaging of the fruit juices marketed by the ORJUS company from ‘ingredients supplied by the latter. Within the framework of this contract, the ORJUS company assumed the organization and the cost of the transport of fruit juice concentrates. To do this, it chartered the company PROTRANS INTERNATIONAL, as freight forwarder. The company ORJUS having left unpaid invoices with the company PROTRANS INTERNATIONAL, the latter requested from the company CEDILAC the payment of the invoices, i.e. the sum of 62 310, 49 ç on the basis of article L 132-8 of the code of business.
By registered letter of May 6, 2002, the CEDILAC company opposed this request, explaining that it was not the recipient of the goods, but a simple recipient and domiciliary of the ORJUS company within the framework of a shaping contract.
By judgment of June 27, 2002, the Commercial Court of PARIS pronounced the opening of judicial reorganization proceedings against the company ORJUS.
By deed of July 17, 2002, the company PROTRANS INTERNATIONAL brought proceedings against the company CEDILAC before the commercial court of LYON for payment of the invoices. By deed of June 18, 2003, it called the company CANDIA in question and as a guarantee for the purpose of seeing it condemned in solidum with the company CEDILAC.
The two procedures have been joined.
By judgment of June 15, 2004, the commercial court of LYON: – dismissed the company PROTRANS INTERNATIONAL of all of its claims; – ordered the company PROTRANS INTERNATIONAL to pay the sum of 2,000 ç to the CEDILAC company and the sum of 2,000 ç also to the CANDIA company in application of article 700 of the new code of civil procedure.
By declaration received at the registry of the Court on July 1, 2004, the company PROTRANS INTERNATIONAL appealed against this judgment.
Considering article 455 paragraph 1 of the new code of civil procedure, in its wording resulting from decree no 98-1231 of December 28, 1998;
Considering the claims and the means developed by the company PROTRANS INTERNATIONAL in its conclusions of October 15, 2004, tending to obtain the condemnation in solidum of the companies CEDILAC and CANDIA to pay him the sum of 44 247, 72 ç in addition to interest at the legal rate and capitalization interest as well as 3,000 ç in application of article 700 of the new code of civil procedure, on the grounds that the company CEDILAC is indeed addressee within the meaning of article L 132-8 of the commercial code, that it can benefit as freight forwarder, that if the company CEDILAC and the company CANDIA are two different legal persons, they use the same trade name, that the two companies deliberately maintain the confusion between them;
Considering the claims and the means developed by the company CEDILAC and the company CANDIA in their conclusions of February 28, 2005, tending to obtain the confirmation of the judgment undertaken in addition to 2,000 ç of damages and 2,000 ç each in application of article 700 of the new code of civil procedure, on the grounds that the recipient necessarily has the quality of party to the contract of carriage, that this is not the case of the company CEDILAC, simple
recipient, that only the company ORJUS had the capacity of recipient, that only the valet can exercise the direct action in payment provided for by article L 132-8 of the commercial code, that the company CANDIA is totally foreign to the present case ; in the alternative that the invoices presented to ROTTERDSAM in no way concern CEDILAC; REASONS FOR DECISIONWhereas article L 132-8 of the commercial code provides that the valet has a direct action in payment of its services against the sender and the recipient, who are responsible for the payment of the price of the transport;

Whereas if the aforementioned article expressly relates only to the valet, the freight forwarder, when he has paid the valet, is subrogated in his rights; that the company PROTRANS INTERNATIONAL, which it is not disputed that it acted as forwarding agent, is justified to act in payment against the shipper or the recipient;

Whereas with regard to the contract of transport, has only the quality of recipient that which appears as such on the document of transport; whereas it is this consignee designated by the sender that the carrier alone has to know, even if he knows that he is not the final consignee; that, according to the international consignment notes paid to the debates, the company CANDIA appears as recipient; that in this case, the fact that the company ORJUS is the final recipient of the goods after reconstitution and / or packaging of the fruit juices by the company CANDIA, has no impact on the legal qualification of the recipient as recalled above;
Whereas the CANDIA company and the CEDILAC company are two different legal persons; that however on the consignment notes, they appear indifferently one in place of the other; that when the company CANDIA is mentioned as recipient, it is the stamp of the company CEDILAC which appears next to the signature of the person authorized to receive the goods; that, under these conditions, they will be condemned in solidum, solidarity being presumed in commercial matters;
Whereas the interest at the legal rate is of right; that the capitalization of the interests must be granted to the parties which request it since the conditions of article 1154 of the civil code are met; that it is granted from the first request is July 17, 2002;
Whereas the equity demands that the totality of the irreparable costs not be left to the load of the company PROTRANS INTERNATIONAL; that it will be allocated 2,500 ç for this purpose;
Whereas the companies CANDIA and CEDILAC, which succumb, will be ordered in solidum to pay the costs;FOR THESE REASONS, THE COURT,

Reforms the decision undertaken in all its provisions;

And ruling again,

Condemns in solidum the companies CANDIA and CEDILAC to pay to the company PROTRANS INTERNATIONAL the sum of 44 247.72 ç in addition to interest at the legal rate with capitalization as of July 17, 2002;
Condemns in solidum the companies CANDIA and CEDILAC to pay to the company PROTRANS INTERNATIONAL the sum of 2,500 ç in application of article 700 of the new code of civil procedure;
Orders the companies CANDIA and CEDILAC in solidum to pay the costs, which will be recovered in accordance with article 699 of the new code of
civil proceedings, by SCP JUNILLON WICKY, solicitors.
The REGISTRAR,
President,
Marie-Pierre X …
Laurence FLISE

Lyon Court of Appeal

Public hearing of May 3, 2005

Appeal number:
Published by the Documentation and Studies Department of the Cour de cassation
COUR D’APPEL DE LYON
SIXTH CIVIL CHAMBER JUDGMENT OF 03 MAY 2005
Decision referred: Decision of the LYON District Court of October 30, 2003 – (RG: 2002/4685) N ° RG: 03/06989Nature of appeal: APPEAL Case: Request for payment of the price of transport APPELLANT: TRANSPORT VILLARD COMPANY represented by SCP JUNILLON-WICKY, Solicitors assisted by Maître HORDOT, Lawyer, (SAINT-ETIENNE) RESPONDENT: MUNICIPALITY OF THE TOUR DE SALVAGNY, represented by its current Mayor represented by SCP DUTRIEVOZ, Attorneys assisted by Maître CIEVET, Lawyer, (TOQUE 187) Instruction closed on January 25, 2005 DEBATES in public hearing of March 10, 2005 held by Madame DUMAS, Advisor rapporteur, (without opposition from the lawyers duly advised) who reported to the Court in its deliberation, assisted during the debates of Mrs X …, Registrar, COMPOSITION OF THE COURT during the deliberation:. Mr. LECOMTE, President. Madame DUMAS, Counselor. Madam de la LANCE,

contradictory pronounced at the public hearing of 03 MAY 2005, by Mr. LECOMTE, President, who signed the minute with Mrs. X …, Registrar
STATEMENT OF THE LITIGATION
During November 2001, SARL TRANSPORTS VILLARD was commissioned by the Menuiserie du PELEM to deliver wooden chalets ordered by the municipality of Tour de Salvagny.
The delivery having been made and the Company TRANSPORTS VILLARD not having been able to obtain the payment of its transport invoice by the Menuiserie du PELEM placed in compulsory liquidation on July 3, 2002, the SARL TRANSPORTS VILLARD assigned on October 30, 2002 the municipality of the Tour de Salvigny before the Lyon district court in direct payment of the amount of the invoice in application of article 132-8 of the Commercial Code as recipient of the goods transported.
By judgment of October 30, 2003, the district court dismissed the SARL TRANSPORTS VILLARD from its claims, noting that it had committed a fault for having neglected to inform the municipality in good time of the unpaid debt while the contract of transport provided for payment by the shipper no later than February 10, 2002.
Appellant of this decision, the reform of which it is continuing, the company TRANSPORTS VILLARD argues that article 132-8 of the Commercial Code, of public order, is not subject to any conditions contrary to the reasoning of the first judge. It denies having committed a fault and notes that it quite naturally sought to obtain payment from the principal debtor before requesting the guarantee of the recipient. She adds that it is understandable that the Menuiserie du PELEM did not settle on February 10, 2002, either at the
Due date, Transports VILLARD since it was not until March 4, 2002 (for payment on February 20, 2002) that it was settled by the municipality of Tour de Salvagny.
The appellant therefore asks the Court to order the municipality of Tour de Salvagny to pay it the sum of ä 4,786.12 including tax in addition to interest at the legal rate from August 14, 2002, as well as the sum of ä 1,500. in application of article 700 of the new Code of Civil Procedure.
The municipality of Tour de Salvagny concludes that the deferred judgment is confirmed, except for adding the additional sum of 1,200 ä under article 700 of the new Code of Civil Procedure. It replies that direct action for the benefit of the carrier against the recipient of the goods transported for which the cost of the costs has not been paid to him cannot, however, have the consequence of creating for his benefit a “right to irresponsibility. commercial “and that in this case multiple negligence was committed by the Company of TRANSPORTS VILLARD in the management of their commercial relationship with the Company MENUISERIE DU PELEM, whether it is the lack of requirement of advance payment of transport costs,
REASONS FOR DECISIONWhereas under article 132-8 of the Commercial Code, the carrier has a direct action in payment of its services against the sender and the recipient, who are responsible for the price of the transport, any contrary clause being deemed unwritten;

Whereas by virtue of the text, the Société des TRANSPORTS VILLARD is perfectly entitled to obtain payment of the price of the transport (not paid by the sender placed in compulsory liquidation) by the recipient of the goods transported, the municipality of La Tour de Salvagny;

Whereas the payment guarantee put in place by the legislator applies in a general way, it does not matter whether it is a transport “carriage paid” at 60 days on the 10th;

Whereas, however, the protection of public order established by this text for the benefit of the carrier does not prevent the recipient from invoking a fault on the part of the carrier allowing him only to obtain damages in compensation for the damage suffered as a result of this fault ;

Whereas, in the present case, contrary to the assessment of the first judge, no serious fault can be attributed to the transport company which legitimately sought to obtain payment from its principal debtor, as it justifies by the letter of recovery of April 12, 2002, two months after the scheduled deadline, and the order for payment procedure of May 5, 2002; that the circumstance holding in fact that the transport company did not immediately, from the deadline of February 10, 2002, warn the municipality of the non-payment of the price of the transport, which would have enabled it to reserve the mandate of the last invoice carried out on February 20, 2002, is not indicative of a fault likely to engage the
responsibility of the carrier vis-à-vis the recipient, reaction times not being unusually long;Whereas the Court, reforming in that the decision referred, allows the request of the carrier, not contested in its amount; Whereas it appears unfair to leave the charge of the appellant company the sum of 1,200 ä on the basis of article 700 of the new Code of Civil Procedure;

FOR THESE REASONS

THE COURTYARD,

Receive the call in good form,

Basically,
Reverses the judgment referred,
Ruling again,
Orders the municipality of Tour de Salvagny to pay to SARL DES TRANSPORTS VILLARD the sum of 4,786.12 ä in addition to interest at the legal rate as of August 14, 2002 and the sum of 1,200 ä in application of article 700 of the new Code of Civil Procedure,
Disband the municipality of Tour de Salvagny from its claims,
Condemns the municipality of Tour de Salvagny to pay the entire costs of first instance and appeal, the latter distracted in favor of the SP JUNILLON & amp; WICKY, Attorneys, in accordance with the provisions of article 699 of the new Code of Civil Procedure. THE CLERK
PRESIDENT

Colmar Court of Appeal

Public hearing of December 11, 2003

Appeal number:
Published by the Documentation and Studies Department of the Court of Cassation
SECOND CIVIL CHAMBER Section A PA MINUTE N ° 1219/03 Registration number in the general directory: 2 A 02/01142 Copies enforceable at: Maître CROVISIER Maître JOURNEE-SIAU 11 December 2003 The Registrar REPUBLIQUE FRANCAISE ON BEHALF OF THE FRENCH PEOPLE COLMAR APPEAL COURT JUDGMENT OF 11 December 2003 Decision referred to the Court:
judgment of January 17, 2002 of the COURT OF GRANDE INSTANCE STRASBOURG APPELANTE, defendant and counterclaim, RESPONDENT on incidental appeal: SARL NORMA represented by its legal representatives having its registered office at 19, rue de Bretagne Bâtiment E 38070 SAINT QUENTIN FALLAVIER represented by Maître CROVISIER , lawyer in COLMAR pleading: Maître TRITSCHLER, lawyer in STRASBOURG INTIMEE, plaintiff and defendant in counterclaim, APPELLANT on cross-appeal: SA TRANSPORTS GRG represented by its legal representatives having its registered office at ZA Rue Maison Dieu 21220 FIXIN represented by Maître JOURNEE-SIAU, lawyer at COLMAR pleading:
Maître LEONARD, lawyer in PARIS COMPOSITION OF THE COURT: The case was debated on November 7, 2003, in open court, before the Court composed of: Marc SAMSON, President of the Chamber Christian CUENOT, Advisor Philippe ALLARD, Advisor who deliberated on it . Clerk, during the debates: François DOLLE ARRET:
– Contradictory – publicly pronounced by Marc SAMSON, President – signed by Marc SAMSON, President and Nathalie NEFF, registrar present at the pronouncement.
By judgment dated January 17, 2002, the Strasbourg Tribunal de Grande Instance: – condemned, to the visa of Article L 132-8 of the Commercial Code, the company NORMA to pay the company TRANSPORTS GRG a sum of 10,757 , 41 ä, with interest at the legal rate from 6 July 1999, representing the cost of various transportations, – condemned the company TRANSPORTS GRG, considered responsible for having contributed to increasing the unpaid amount of the sender, to be paid to the society
NORMA the sum of 3,048.98 ä as damages, with interest at the legal rate from the judgment, – ordered the compensation between the reciprocal debts up to the due amount, – rejected the company TRANSPORTS GRG of its claim for damages and interest for abusive resistance, – ordered provisional execution, – ordered the company NORMA to pay the company TRANSPORTS GRG a sum of ä 1,219.59 in application of article 700 of the new code of civil procedure, – ordered the company NORMA at the costs.
By declarations received on March 8 and 14, 2002, the NORMA company appealed against this decision. TRANSPORTS GRG lodged an incidental appeal.
The junction of the two instances was ordered by the Pre-Trial Advisor.
According to conclusions submitted to the registry on February 28, 2003, the company NORMA which accuses the first judges on the one hand of having distorted Article L 132-8 of the Commercial Code by assimilating the recipient to a joint debtor in solidarity with the sender and by ignoring the impact of the insolvency proceedings of the principal, on the other hand, for having underestimated the damage caused to the conclusive by the negligent commercial practices of the company TRANSPORTS GRG, asks the Court to: ‘main appeal, – declare the company NORMA admissible and well founded in its appeal; – reverse the judgment undertaken; – pronounce the loss of the warranty claim of the company TRANSPORTS GRG against the conclusive; – in the alternative, set the amount of the damage suffered by the conclusive party at the amount of the possible order to intervene, in principal and default interest at the legal rate; – order the compensation of the possible claim of the company TRANSPORTS GRG on the conclusive one with the correlative claim for damages of the company NORMA on the respondent; – say that the resistance of the NORMA company
is not abusive; – order the company TRANSPORTS GRG to pay the costs of first instance and appeal; – order the company TRANSPORTS GRG to pay 2,000 ä for the two procedures by application of article 700 of the new code of civil procedure; On the incidental appeal, – declare the company TRANSPORTS GRG inadmissible and in any case ill-founded in its incidental appeal; – dismiss it; – order the company TRANSPORTS GRG to pay the costs arising from the incidental appeal.
According to the conclusions submitted on October 7, 2002, the company TRANSPORTS GRG retorts that the exercise of its direct action is in no way subordinated to the declaration and admission of its claim as a liability of the shipper, that the company NORMA cannot oppose the payments that she claims to have made in execution of sales prepaid and that the conclusive one did not commit any fault by granting delays of payment to her client.
Consequently, it requests the Court to: – declare inadmissible and ill-founded the appeal lodged by the company NORMA; – declare admissible and well founded the incidental appeal brought by the conclusive one; – partially reform the judgment undertaken; – order the company NORMA to pay the principal sum of ä 10,757.41, with interest at the legal rate from July 6, 1999, the date of the formal notice; – order the company NORMA to pay the company TRANSPORTS GRG the sum of 1,524.49 ä as damages for abusive resistance and that of 3,048.98 ä under article 700 of the new code of civil procedure; – dismiss the company NORMA from all of its claims;
The closing order was issued on September 26, 2003.
ON THIS, THE COURT,
Having regard to the documents and writings of the parties to which it is referred for the presentation of the details of their arguments;
Whereas in the form that the appeal was lodged according to the legal formalities; that the date of service of the judgment does not result from the file; no reason is developed in support of the inadmissibility of the appeal raised by the company TRANSPORTS GRG in a style clause; that the main appeal will be declared admissible;
Whereas the grounds for the alleged inadmissibility of the incidental appeal not being specified, the incidental appeal of the company TRANSPORTS GRG will be declared admissible;
Whereas the company TRANSPORTS GRG was commissioned, on twenty occasions from 6 July 1998 to 19 February 1999, by the SOCIETE D’EXPLOITATION DES EAUX DE NIEDERBRONN (whose trade name is CELTIC) to transport pallets of mineral water from Niederbronn-les-Bains in Saint-Quentin Fallavier, where warehouses of the company NORMA are located;Whereas these services were invoiced to the company CELTIC for a total amount of 59,000 F HT or 70,564 F TTC; that a collective procedure has since been opened against the company CELTIC;

Whereas it results from article L 132-8 of the commercial code that the company NORMA is, in its capacity as recipient, guarantee of the payment of the price of the transport towards the valet, the company TRANSPORTS GRG;Whereas the valet being holder of a “direct action in payment of its services”, this one is not obliged to produce beforehand the liabilities of its co-contracting party in the event of receivership or compulsory liquidation of that -this ; that in other words, the company NORMA cannot set up against the respondent a

any automatic extinction of its debt, and this all the less since the company TRANSPORTS GRG justifies the registration of its declaration of debt in the hands of Me Windenberger – Jenner, representative of the creditors of the company CELTIC;
Whereas the company NORMA can no longer hide behind the circumstance that it has already paid the transport costs to the company CELTIC, with which the price of the water bottles had been agreed “Franco”; that indeed, Article L 132-8 of the Commercial Code requires the appellant, debtor of an obligation of guarantee, to disinterested in any event the carrier, even at the price of a double settlement;Whereas having by its declaration of claim in the hands of the representative of the creditors demonstrated the default of the sender, the company TRANSPORTS GRG is entitled to obtain from the company NORMA the payment of its services, that is to say 70,564 F or 10,757.41 ä , in addition to interest at the legal rate from July 6, 1999;

Whereas the company TRANSPORTS GRG does not justify having suffered a prejudice independent of the simple delay in the payment repaired by the default interest; that it will be dismissed of its claim for damages for abusive resistance;

Whereas the company NORMA does not demonstrate that
Whereas the company NORMA does not demonstrate that the absence of opposition to the payment of the sale price of the business of the company CELTIC would have deprived the company TRANSPORTS GRG, simple unsecured creditor, of even partial payment of its debt; Whereas by way of derogation from the standard “general” contract applicable to public goods transport, which provides that transport costs are payable in cash, or even upon receipt of the carrier’s invoice, the TRANSPORTS GRG company had accepted a deferred payment of 90 days from the date of the invoice; that the granting of this facility is not in itself faulty;Whereas the receivable due from the respondent who also conveyed water pallets to Beaune on behalf of the CELTIC company, came out on October 31, 1998, in spite of contractual payment terms, at 51,472 F TTC; that despite the default of the shipper, the company TRANSPORTS GRG continued to honor its

transport orders, without modifying its payment terms, nor requiring any payment guarantee; that from November 4, 1998 to February 19, 1999, the company TRANSPORTS GRG thus performed on behalf of the company CELTIC services for a total amount of 157,443.30 F, including 26,550 F HT (i.e. 32,019.30 F TTC), at title of the only transportations to Saint-Quentin Fallavier;Whereas Article L 132-8 of the Commercial Code establishes for the benefit of the valet a particularly effective payment guarantee for the price of transport, by making bear by the sender or the recipient, in the event that the latter is forced to pay twice for the same service, the charge of the insolvency of the principal;

Whereas the certainty of being able to activate a solvent interlocutor explains the carelessness of the company TRANSPORTS GRG which agreed to maintain its activity with a customer of questionable solvency and had no reaction to the increase in unpaid debts; that the double payment put in charge of the company NORMA is in direct relation of cause and effect with the indolence or even the lack of loyalty of the carrier; that the contractual responsibility of the company TRANSPORTS GRG is engaged;

Whereas the damage of the company NORMA, equal to the amount of the services provided from November 18, 1998, i.e. at the end of a period of fifteen days sufficiently long to allow the company TRANSPORTS GRG to re-examine its commercial relations with the company CELTIC, amounts to 23,600 F HT or 28,461.60 F TTC or 4,338.94 ä, in addition to interest at the legal rate from January 17, 2002, date of the judgment initiated;

Whereas equity requires not to apply article 700 of the new code of civil procedure; that the judgment undertaken will be reversed on this point; that for the same reason,

costs will be compensated at first instance and on appeal; FOR THESE REASONS ============== DECLARES the company NORMA admissible in its main appeal and the company TRANSPORTS GRG admissible in its incidental appeal; CONFIRMS the judgment undertaken in that it ordered the company NORMA to pay to the company TRANSPORTS GRG the principal sum of ten thousand seven hundred and fifty seven euros and forty-one centimes (10,757.41 ä) with interest at the legal rate from of July 6, 1999, accepted the principle of the responsibility of the company TRANSPORTS GRG and dismissed the company TRANSPORTS GRG of its claim for damages for abusive resistance; REVERSES the judgment made for the rest; ORDERS the company TRANSPORTS GRG to pay to the company NORMA a sum of four thousand three hundred and thirty eight euros ninety four centimes (4,338.94 ä) as damages, with interest at the legal rate as of January 17, 2002; NOTES the compensation of the respective claims of the parties; RESOLVES the parties to their requests made on the basis of article 700 of the new code of civil procedure;

LEAVE each party to bear its procedural costs both in first instance and in appeal.

And, this judgment has been signed by the President and the Registrar present at the delivery.

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