Case number: 203
Article number: sales convention / 1(1)(a); 18(1); 18(2); 18(3); 19(1); 19(2); 35(1); 35(2)(a)
Thessaurs issue:
Country of decision: France
Year of decision: 1995
Type of decision: Judicial decision





Case 203: CISG 1(1)(a); 18(1); 18(2); 18(3); 19(1); 19(2); 35(1); 35(2)(a)
France: Court of Appeal of Paris
13 December 1995
Société Isea industrie SPA et al. v. SA Lu et al.
Original in French
Published in French: Semaine Juridique [1997], Ed. G, II, No. 22772; CISG-France http://www.jura.uni-sb.de/FB/LS/Witz/131295.htm
Commented on in French: de Vareilles-Sommieres, Semaine Juridique [1997], Ed. G, II, No. 22772
A French company placed an order with an Italian company for outer wrappings of packets of biscuits. The order form of the French company, which carried on its reverse side a jurisdiction clause in favour of the Commercial Court of Paris, was sent back by the Italian company with its representative's signature. Ten days later, the Italian company confirmed the order, referring to its sales conditions, which included a jurisdiction clause in favour of the Court of Tortona.

Considering the wrappings sold to be defective, the French buyer sued its seller before the Commercial Court of Paris. Having raised a plea asserting lack of jurisdiction, the seller lodged an objection, invoking articles 18 and 19(2) CISG, but the Court of Appeal of Paris ruled to retain its jurisdiction.

In order to determine its jurisdiction, the Court of Appeal of Paris found that CISG was applicable since the sales contract had been concluded between two contracting parties with their places of business in two different States parties to CISG (article 1(1)(a)).

The Court noted that, in conformity with article 18(2) CISG, the contract had been formed at the moment the French company received the order form. It considered, however, that in the absence of an explicit reference on the front side of the form to the sales conditions indicated on the reverse side, the seller could not be deemed to have accepted those conditions. The Court of Appeal of Paris likewise rejected the applicability of the general sales conditions of the Italian company on the ground that the confirmation of the order, which was subsequent to the formation of the contract, was to be interpreted as a counter-offer within the meaning of article 19(1) CISG and was rendered absolutely inapplicable by the lack of acceptance by the buyer.

Referring to articles 35(1) and 35(2)(a) CISG, the Court concluded that these provisions linked the delivery and conformity of the goods with their use in such a way that the corresponding obligations were performed or were to be performed in the same place. The Court consequently found that, since the goods had been delivered on the premises of the French company located in Lorient, the dispute came under the jurisdiction of the Commercial Court of Lorient.