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 19

COURT OF CASSATION
(CH. COM.)
March 24, 1965
SALE, PRICE, DETERMINATION, EXCLUSIVE FRANCHISE, AGREEMENTS SET OUT LATER, UNPERFORMED CONTRACT
A sales contract is only perfect if it makes it possible, in light of its terms, to determine the price by
elements no longer depending on the will of one of the parties or the performance of later agreements (1);
A company having given, for 25 years, exclusive distribution of the goods it manufactures to one
merchant, the ruling must be quashed that, to qualify that contract, sales contract, and admit that there was
an agreement on the price, states that the price is to result “from the acceptance by the buyer of the
preferential rate granted to it by its seller and established between them in good faith on clearly specified
bases,” these having to include, under the terms of the contract, the cost and the profit of the grantor (2);
By ruling in this way, although it does not result solely from the indication of these bases that the
price was determinable and that furthermore, the setting of that price, subject to “the subsequent
establishment in good faith of a preferential rate,” the offer of that rate by the seller, and its acceptance by
the buyer, was thereby subject to the conclusion of later agreements, the judges violated Art. 1591 c. civ. (3).
(Soc. Anon. Bronzavia v. Angot.) – RULING
THE COURT; — On the sole ground: — In light of Art. 1591 c. civ.; — Whereas a sales contract is only
perfect if it makes it possible, in light of its clauses, to determine the price by elements no longer depending
on the will of one of the parties or the conclusion of subsequent agreements; — Whereas it results from the
contested ruling (Paris, Nov. 22, 1963) that in 1961 the Company Bronzavia granted, for 25 years to Angot,
the exclusive distribution of the goods manufactured by it; that difficulties having arisen from the
performance of that agreement, the contested decision, after having declared that that contract was a sale as
claimed by Angot, pronounced, upon the request of the latter, the termination of the aforementioned
agreement at the fault of Bronzavia by rejecting the ground opposed by the latter drawn from the invalidity
of the sales contract for lack of agreement on the price; — Whereas to admit that there had been an
agreement on the price, the court of appeal stated that that price had to result “from the acceptance by the
buyer of the preferential rate granted to it by its seller and that was established between them in good faith
on clearly specified bases,” these having to include, under the terms of the contract recalled by the first
judges, the cost and the profit of Bronzavia; that by ruling in this way, whereas it does not result from the
sole indication of these bases that the price was determinable and while furthermore, the setting of that
price, subject to “the subsequent establishment in good faith of a preferential rate,” the offer of that rate by
the seller, and the acceptance thereof by the buyer, were thereby subject to the conclusion of later
agreements, the court of appeal violated the aforementioned text;
On these grounds, quashes…, remands to the Amiens court of appeal.
March 24, 1965. – Ch. com. – Messrs. Guillot, pr. – Sébire, rap. – Come, 1st pub. pros. – Marcilhacy
and Lemanissier, att.
NOTE. – (1, 2 and 3) The sale is not valid if the setting of the price is abandoned at the desire of either
of the contracting parties or postponed to a later agreement (Pau, July 9, 1888, D. P. 89. 2. 62; Trib. Corr.
Saint-Sever, March 23, 1900, D. P. 1903. 5. 779). – See Rep. civ. and Mise à jour [Update], v° Vente [Sale], by
Ph. Malaurie, nos. 644 and f.