Case number: 151
Article number: sales convention / 1(1)(a); 6; 55
Thessaurs issue:
Country of decision: France
Year of decision: 1995
Type of decision: Judicial decision

Case 151: CISG 1(1)(a); 6; 55
France: Court of Appeal of Grenoble (Commercial Division)

26 April 1995

Entreprise Alain Veyron v. Soci‚t‚ E. Ambrosio

Original in French

Published in French: [1996] UNILEX

Reported on in English: [1996] UNILEX

A commercial collaboration contract was concluded in 1989 between a company with its place of business in Italy and an individual resident in France. The latter thus became the sole representative and importer of confectionery exported by the Italian business. One year later, the Italian company broke off the collaboration agreement, which triggered the dispute.<

The Court of Appeal found that the commercial collaboration contract pertained partly to sales and partly to representation, and that the part falling under sales law was governed by CISG since it had been concluded between a seller and a buyer based in Italy and France respectively, both States being parties to CISG (art.1(1)(a)).

The Court of Appeal considered the question of the possible liability of the Italian company for breach of contract regarding the part of the commercial collaboration contract pertaining to sales. The court based this finding on a provision of the collaboration contract whereby the contract was revokable without being open to objection on the part of the agent. The court also found that the Italian company was not obliged to make any payment for breach of contract. The court stressed that such a stipulation was not prohibited by CISG and that the parties were at liberty to agree that the seller could refuse to maintain the contractual relationship since it would not thereby be calling into question the performance of a previously concluded sales contract. The court noted that, in the case in point, it was not alleged that the decision to terminate the contractual relationship had resulted in a refusal to execute a previously placed order or in the incomplete execution of such an order. The court concluded the
refore that the Italian company could not be held liable for breach of the part of the commercial collaboration contract pertaining to sales.

The Court of Appeal also ruled on the operation of article 55 CISG, which the commercial agent had used to his advantage. The latter had asserted that his successor had benefited from lower prices than those charged to him and requested the court to reduce accordingly the debt claimed by the Italian exporter. The court found that "the reference made by article 55 CISG to a market price, in as much as this article is applicable to the case, is overridden by a contrary agreement between the parties, such as the provisions of CISG in their entirety, with the exception of article 12 (art. 6)". The court also noted that the objections raised by the agent when the rates charged were increased in 1990 did not call into question the sales contract itself but merely expressed general grievances regarding the parties' business relationship and the difficulties encountered in the face of the competition. The court finally noted that, since the commercial agent had taken delivery of the goods without specifically questio
ning their purchase price, the exporter was justified, under article 8(2) and (3) CISG, in interpreting the agent's behaviour as indicating acceptance of the rate charged.