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 23

16 February 2012

Court of cassation
Plenary assembly
Public hearing on 1 December 1995
Appeal no.: 91-19653
Published in the bulletin
Cassation
First president: Mr. Drai., president
Rapporteur: Mrs. Fossereau, assisted by Mrs. Merchan de la Pena, auditor., reporting
judge
First Advocate General: Mr. Jéol., advocate general
Attorneys: Partners Defrénois and Levis, Mr. Jacoupy., attorney(s)

THE FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
On the first part of the only ground:

In light of articles 1134 and 1135 of the Civil Code;

Whereas the provision of a franchising agreement referring to the tariff valid on the day
that future supply orders are placed does not affect the validity of the contract, price fixing
abuse leading only to termination or compensation;

Whereas, according to the contested decision, Mr. X… entered into an agreement under
which he would become, for a duration of 5 years, Mr. Y…’s franchisee and agreed to use
exclusively the products sold by him;
Whereas, to annul the contract, the decision maintains that article 5 of the contract

provides “that the products will be sold at the tariff valid on the day of the registration of the
order, such tariff being the catalogue price applied to all franchisees,” that this is in fact a
price list and that the price determination is consequently at the franchisor’s discretion;

By ruling in this manner, the appellate court has violated the aforementioned provisions;

FOR THESE REASONS, and without any need to adjudicate on the second part of the
ground:

RENDERS NULL AND VOID, in all of its provisions, the judgment delivered on 10 July
1991, between the parties, by the Court of Appeals in Chambéry, consequently puts the
parties in the position they would have been in before the said judgment, and, as required
by law, remands the case to the appellate court of Paris.
ANNEXED GROUNDS

Grounds produced by partners Defrénois and Levis, advocate in council, for Mr. Y…

GROUNDS FOR APPEAL:
An objection is raised to the contested ruling for pronouncing the franchising contract
signed on 28 February 1983 between Mr. Y…, franchisor, and Mr. X, franchisee, null and
void, and to have consequently ordered Mr. Y… to reimburse to Mr. X… the amount of
187,760 francs that had been paid as a partial consideration for the contract and to pay to
Mr. X… the amount of 60000 francs in damages;

ON THE GROUNDS THAT the franchising agreement provides that the supplied products
would be sold to the franchisee at the tariff valid on the day of the registration of the order
and that such tariff would be the catalogue price applied by the franchisor to all other
franchisees and exclusive distributors; but that in fact no catalogue price has ever existed,
the franchisor providing the franchisees with a price list drawn up by him at the beginning
of the year, valid for the duration of the year to come; that the determination of the price of
the products which the franchisee was obliged to purchase was left to the sole discretion
of the franchisor; that the contract is thus void for price indeterminacy; that the amounts
paid and the equipment received should be returned; that the franchisee should be
granted 60,000 francs in damages to compensate for the loss of use for several years in
the amount of 187,760 francs that he had paid to the franchisor;

WHEREAS, on the one hand, the franchising agreement is distinct from the successive

sales contracts entered into later on by the franchisor and the franchisee; that, therefore,
even if these sales contracts were void for price indeterminacy, the franchising agreement
could not be annulled automatically; that by failing to establish whether in this case the
subject matter of the franchising agreement was effectively performance obligations so
that article 1129 of the Civil Code was not applicable, and whether its provisions regarding
the prices of subsequent sales contracts referred exclusively to these contracts, so that
these provisions only needed to be examined in order to assess the lawfulness of these
sales contracts, the decision by the appellate court was without legal foundation according
to Article 1129, 1134 and 1165 of the Civil Code;

AND WHEREAS, on the other hand, the annulment of a contract only obliges each party to
return the object received from its co-contractor; that a party can only, in addition, be
ordered to pay damages if it has committed a breach causing a damage to its cocontractor; that, in this case, the franchisor had the right to receive the amount of 187,760
francs and to keep it as long the franchising agreement had not been annulled, that in
addition this was only the consideration for the use of the equipment by the franchisee;
that by nevertheless ordering Mr. Y… to pay 60000 francs in damages to Mr. X…, without
finding that the franchisor had committed a breach nor establishing a causal link to the
damage alleged by the franchisee, the decision by the appellate court was without legal
foundation according to Article 1382 of the Civil Code.

Publication: Bulletin 1995 A. P. N° 8 p. 15

Contested decision: Court of Appeals of Chambéry, on 10 July 1991

Titles and summaries: CONTRACTS AND OBLIGATIONS - Subject - Determination Necessity - Scope of application - Framework agreement - Subsequent contracts - Price Fixing - Abuse – Sanctions. The provision of a franchising agreement referring to the tariff
valid on the day that future supply orders are placed does not affect the validity of the
contract, as price fixing abuse leads only to termination or compensation.

Applicable laws:
• Civil Code 1134, 1135