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23-03-2018

 

The limitation of liability clause survives the cancellation of the contract

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In a judgment of February 7, 2018 (Cass. Com., February 7, 2018, appeal no. 16-20352), the Court of Cassation operates a reversal of case law regarding the fate of liability limitation clauses in the event of retroactive cancellation of a contract.

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In this case, after noting serious defects in the boiler supplied by the company Constructions Industrielles de Méditerranée (CNIM company), the company Valmy Energies sued CNIM for rescission of the sales contract and sought compensation for various material damages. In defence, the company CNIM opposed the limiting repair clause of the contract.

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Following the reasoning adopted until then by the Court of Cassation (Cass. Com., October 5, 2010, n°08-11630), the Nancy Court of Appeal had considered in 2016 that, given the retroactive annihilation of the contract of sale pronounced, CNIM could not oppose the limitation of liability clause to its customer.

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In its decision of February 2018, the Court of Cassation overturns this judgment on the basis of Articles 1134 and 1184 of the Civil Code, in their wording prior to that resulting from Ordinance No. 2016-131 of February 10, 2016 reforming the law of obligations, on the grounds " that in the event of termination of a contract for non-performance, the limiting clauses for repairing the consequences of this non-performance remain applicable (…)  and thus recognizes their autonomy in relation to the contracts that contain them.

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This motivation seems to be inspired by the wording of the new article 1230 of the Civil Code, according to which: " The resolution affects neither the clauses relating to the settlement of disputes, nor those intended to produce effect even in the event of resolution, such as the confidentiality and non-competition clauses. ”. It is also traditionally recognized that an arbitration clause, independent of the contract that contains it, survives the retroactive cancellation of the contract.

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The extension of this solution to limitation of liability clauses ensures greater efficiency. One could legitimately be moved by the fact that the Court of Cassation thus takes the liberty of applying the new article 1230 to contracts concluded prior to October 1, 2016, the date of entry into force of the order of February 10, 2016. is contrary to the transitional provisions provided for by the ordinance.

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Roland Rinaldo, avocat, Cabinet ARTLEX, Nantes     _cc781905- 5cde-3194-bb3b-136bad5cf58d_     _cc781905-5cde- 3194-bb3b-136bad5cf58d_     _cc781905-5cde-3194- cc781905-5cde-3194-bb3b-136bad5cf58d_ _cc781905-5cde-3194-bb3b-136bad5cf58d
Juliette Bachelard, élève-avocat, Cabinet ARTLEX, Nantes    _cc781905-5cde-3194-bb3b- 136bad5cf58d_   _cc781905-5cde-31946_bb35bad-186bad

 

Court of Cassation, Commercial Chamber, judgment of February 7, 2018, appeal no. 16-20352, CNIM, Valmy Energies, sales contract, limitation of liability clauses, resolution, reform of the law of obligations, order no. 2016-131 of 10 February 2016, article 1230 of the Civil Code, clauses relating to the settlement of disputes.