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 5

PRIVATE LAW LIBRARY
under the direction of

HENRY SOLUS
Honorary Professor in the Faculty of Law and of Economic Sciences of Paris

VOLUME CIX
_____________________________________________________________

NOTIONS AND ROLES OF THE OFFER
AND OF THE ACCEPTANCE IN THE
CREATION OF THE CONTRACT
BY

Jean-Luc AUBERT
Doctor at Law
Laureate of the Faculty of Law and of Economic Sciences of Paris
Lecturer
of the Faculty of Law and of Economic Sciences of Nancy

PREFACE BY

Jacques FLOUR
Professor of the Faculty of Law and of Economic Sciences of Paris
Work awarded a grant
by the Ministry of National Education

PARIS
GENERAL LAW AND JURISPRUDENCE BOOKSTORE
R. PICHON AND R. DURAND-AUZIAS
20 AND 24, Rue Soufflot, 20 and 24
____
1970

282

NOTIONS AND ROLES OF THE OFFER AND OF THE

…constant117, unless the creation of the contract is precisely subordinated to the
label. This is what is clearly highlighted by a ruling of the Court of Cassation, in
accordance to which the fact that the trial judges had decided that the agreement of
the parties took place on the date of the signing of the agreement by the party who
had not yet signed, which necessarily assumes that said party had not already
previously given his assent.118
That which remains true, is that, when one is dealing with a contract that
includes relatively complex clauses, the signature of the act, insofar as one were to
admit that it does effectively bring about the acceptance of the whole,119 permits to
precisely indicate the contents of the agreement, something that cannot always be
possible when there is nothing more than a tacit acceptance.120 The fact that the
latter might be suffering from a practical inferiority, compared to the express
manifestation of their will, would not be able to prevent its judicial effectiveness.
307. – The Civil Code has itself foreseen a case of tacit agreement, in the
event of the mandate. In effect Article 1985 lays forth, in its paragraph 2, that “the
acceptance of the mandate may only be tacit and result from the execution that has
been enacted by the proxy [mandatary].”
In this case, one is incontrovertibly dealing with a direct tacit acceptance,
insofar as the manifestation of the acceptance is made through the execution of the
contract, which is to say immediately, directly towards the purpose of the contract
itself. The idea of acceptance by way of performance of the offered contract is
acknowledged as a general principle.121 Jurisprudence allows in the same manner,
the effectiveness of the acceptance by means of execution, this whether there is no
prior contract,122 or whether a new contract were to be substituted for one that was
being currently executed. This is firstly valid in the case where this last convention
differs sufficiently from the preceding one, so as to be able to perceive novelty in
the execution thereof. This is the case when a company proposes new work
conditions as well as new remuneration to one of its employees, and the same, upon
leaving the location of his/her first assignment, makes his/her way to that which has
newly been assigned to him/her and regularly receives the newly agreed upon

117

Sa., December 9, 1964, Bulletin Civil, 1964, IV, No. 829, p. 684.
1st Civ., March 13, 1957, Bulletin Civil, 1957, I, No. 136, p. 113.
119
See hereunder, No. 354 et seq.
120
Com., December 30, 1958, Bulletin Civil 1958, III, No. 465, P. 390. The company C.P.F. had
requested delivery to its retail pharmacists by a company T. It sent a contract together with its
request, a contract that was never signed. The shipping company did nonetheless execute the trade
and for 4 years undertook the requested deliveries. At this point the company C.P.F. decided to put
an end to these services, all the while granting a notice period. The company T, having charged
them with wrongful termination of contract, saw their claims rejected on the basis of the absence of a
written contract; one was not able to allow that the verbal agreement covered all of the stipulations
of the offer, most notably the term of the agreement. Compare here below No. 362.
121
With reserve in the case of solemn covenants, insofar as one can still find precedents, in this
matter, such as the hand-given gift, which, through the fulfillment, removes the legally required
solemnity.
122
Com., December 30, 1958, cited previously.
118

ACCEPTANCE IN THE CREATION OF THE CONTRACT

283

salary.123 The same also holds true when one is dealing with a modification that
does not bring about any apparent change to the prior contract, in particular when
remuneration based upon an hourly or task-based rate is substituted with another
method of salary evaluation.124
308. – The acceptance by means of direct tacit agreement, can likewise
come to be by means of an attitude which tends directly to the creation of the
contract. Therefore, when following up on sales offer, the mandatary of the
recipient calls upon the one making the offer to enact the sales contract;125 or yet
again, and this is a case that is constantly applied in the matter of transport, when
the travel candidate makes contact, in whatever manner, with the transportation
vehicle. Likewise, the fact of setting foot on the platform of a bus is also a form of
acceptance. 126 In a more general manner, one would say that there is acceptance of
the transportation contract, according to the formula of Mr. Rodière,127 as soon as
the traveler enters the vehicle, or more precisely “comes in contact with the
transportation vehicle for this purpose.” It is as of this moment that all of the
obligations of the transporter, and most notably, the obligation of safety which is
placed under their responsibility, take effect, and not at the moment in which, on the
inside of the vehicle, the passenger pays the trip cost and receives their travel ticket.
This delivery of the travel document is, all told, nothing more than the “statement of
the pre-existing judicial situation and the proof of the execution of the obligations
of the traveler.”128 The same is confirmed by a cassation ruling of the Supreme
Court which refuses to allow that, in the case where it is possible to purchase one’s
travel document in advance, the contract becomes effective immediately upon this
purchase, which would have brought about the effect of inhibiting the application of
new rates to the holders of old tickets.129
In addition to these acceptances, which have been admitted by the courts,
which are the result of a direct, but tacit, manifestation of will, the same remains of
those set forth by common practice. One is always dealing with the attitudes of the
recipient of the proposal which imply acceptance, whether directly, or also,
indirectly.
Therefore, in the case of a proposal for the sale of logs by the square meter,
where the recipient beats each log that has been verified from top to bottom…

123

Corporate, December 9, 1964, Bulletin Civil 1964, IV, No. 829, p. 684.
Corporate, April 29, 1965, Bulletin Civil 1965, IV, No. 330, p. 270; Corporate Law of February 10,
1965, Bulletin Civil 1965, IV, No. 119, p. 96.
125 st
1 Civil, May 4, 1954, Bulletin Civil, 1954, I, No. 132, p. 112. This ruling is quite significative insofar
as it refuses to allow, as the date of the sales contract, that of the act of deposit of the minutes recorded by
the notary which includes an express mention of the acceptance (June 15, 1946) and instead prefers that
corresponding to the date in which the summoning was sent to the party making the offer (June 3 1946).
126
T.G.I. Seine, February 24 1962, D. 1962, Summary III; See also Grenoble, April 14, 1958, D. 1958,
414, Rodière note; and Nancy, March 1st, 1950, J.C.P. 1950, II, 5892, Hémard note.
127
Rodière, note under Grenoble, April 14, 1958, mentioned previously.
128
Hémard, note under Nancy, March 1st, 1950, mentioned previously.
129 st
1 Civil, February 22, 1955, Bulletin Civil 1955, I, No. 86, p. 77.
124