Search for cases

The present appellate decision deals with damages claims brought by the owners of two buildings in France because of defects in the buildings. The Claimants primarily sued the French construction companies involved in buildings' construction as general contractor or sub-contractors as well as their insurers, based on provisions of the French Civil Code.

The CISG came into play because the Claimants also sued a Spanish manufacturer (Prodema S.A.) that had supplied composite panels to two of the French sub-constructors involved in the construction works (Constructions Saint Eloi S.A.S. and SOMIP S.a.r.l.) who in turn had used the composite panels for railings and sunshades at the buildings. When the buildings' railings and sunshades later turned out to be defective, the Claimants argued that Prodema S.A. was liable under Arts. 1792 and 1792-4 of the French Civil Code.

Art. 1792 of the French Civil Code (as introduced by Act no 78-12 of 4 January 1978) reads in translation:

"Any builder of a work is liable as of right, towards the building owner or purchaser, for damages, even resulting from a defect of the ground, which imperil the strength of the building or which, affecting it in one of its constituent parts or one of its elements of equipment, render it unsuitable for its purposes.

Such liability does not take place where the builder proves that the damages were occasioned by an extraneous event."

Art. 1792-4(1) of the French Civil Code reads in translation:

"The manufacturer of a work, of a part of a work or of an element of equipment designed and produced for meeting precise and predetermined requirements when in working order, is jointly and severally liable for the obligations placed by Articles 1792, 1792-2 and 1792-3 on the hirer out of work who made use, without modification and in compliance with the directions of the manufacturer, of the work, part of work or element of equipment concerned."

As defense against the claim brought, CISG seller Prodema S.A. relied on the two-year cut-off period in Art. 39(2) CISG. In the present decision, the Court of Appeal Toulouse ruled that Art. 39(2) CISG does not protect a CISG seller against claims brought by third parties in case of such a non-homogeneous chain of contracts (chaîne de contrat non homogène). The relevant passage (in paras. 60–62 of the decision) reads in translation:

"A sales contract was signed between SA Prodema and the companies Constructions Saint Eloi and Somip, which installed the panels.

The co-owners' associations are covered by a works contract.

Article 4 of the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods governs only the rights and obligations arising between the seller and the buyer from such a contract.

There is no contract of sale between Prodema and the syndicates of co-owners. There is a non-homogeneous chain of contracts, with a contract of sale followed by a contract for work and services. As a result, the 2-year period provided for in article 39(2) of this Convention cannot be invoked against the co-owners' associations.

As the Vienna Convention does not apply, French law applies."