Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 900

NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)

Exhibit 15

Domat private law

INTL
KJV
1668
.B46
2006

Civil
Law
SPECIAL CONTRACTS
CIVIL AND COMMERCIAL

ALAIN BÉNABENT
Associate Professor of the School of Law

7th edition
Current as of September 9, 2006

Montchrestien

THE CONTRACT FOR SERVICE
505

General legal principles at stake. But, there are also important differences taking into
consideration the general principles of the civil system:
- the risks are borne by the contractor, who will not be paid in the event of loss (article
1790) whereas the employee does not have to bear them;
- the contractor is liable for his misfeasance (and even sometimes beyond, when he is
responsible for an obligation resulting therefrom), whereas the employee is not liable for
his gross misconduct (82);
- the employee enjoys a general privilege (article 2101) and special guarantees in the
event of bankruptcy of the employer (super-preferential claim, AGS), and not the
contractor;
- the statute of limitations applicable to wages is a five year period (article 2277),
whereas the price owed to the contractor is governed by general legal principles
(hereinafter, no. 574);
- the employer is liable towards third parties for the misconduct of his agents (article
1384, paragraph 5), which is not the case of the principal for the misconduct of the
contractor (83);
- the employee is personally liable towards third parties only for his intentional torts,
but not for non-performance of the contract; for a salaried doctor, for example, the client
must therefore bring action against the employer and not against the doctor (84).

§ 2. | Obligation of the client: remuneration
Contract which is by nature subject to payment. Based on the definition
provided by article 1710 (“the contract for service is a contract by which one of the
parties agrees to make something for the other based on a price agreed upon between
them”), it is traditionally accepted that the contract for service is by nature a contract
subject to payment and that “there is no service contract made free of charge” (85).
When it has been agreed that no price is due, the agreement is considered to
be a “free services contract”, also called a mutual assistance convention or a voluntary
assistance contract which in reality amounts to a loan of assistance and about which, for
lack of any legal text, case-law develops the regime progressively (see hereinafter, no.
619 and f.).
If the existence of remuneration is an essential element of the contract for
services, it is not necessary for it to be determined at the time of formation of the
contract. This is a unique feature of the contract for services (cf. hereinafter, no. 513). It
can thus be said that the necessary element in the classification of the contract for
services lies in a principle of remuneration.
(82) See for example for this issue Soc., April 29, 1981, Bull. V. no. 352.
(83) Com., April 13, 1972, Bull. IV, no. 100.
(84) 1st Civ., June 4, 1991, Bull. I, no. 185 – Crim., March 5, 1992, J. C. P. 93.11.22013, note CHABAS
(for a Red Cross doctor).
(85) MALAURIE c. AYNES, no. 710.

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