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 7

15/02/2012

Court of cassation
Commercial division
Public hearing on 25 June 1991
Appeal no.: 90-11230
Published in the bulletin
Dismissal
President: Mr. Hatoux, senior trial judge acting president
Rapporteur: Mr. Le Dauphin, reporting judge
Advocate general: Mr. Patin, advocate general
Attorneys: partners Desaché and Gatineau, partners Waquet, Farge and Hazan., attorney
(s)

THE FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

.

Sole grounds for appeal, based on three prongs:

Whereas, according to the disputed judgment (Rennes, 6 December 1989), that Entreprise
industrielle was commissioned by the Administration of bridge construction whose delivery
was to take place on 6 July 1984; that it subcontracted to the Société nouvelle forage et
canalisations [new drilling and pipeline company ] (hereinafter, Société nouvelle) the
construction of special foundations; that sued by the Société nouvelle for payment of the
balance of the contract, the Entreprise industrielle argued that it was entitled to charge
late penalties to its co-contractor;

Whereas the Société nouvelle objects to the judgment finding this claim favorable in
articulating the objections of misreading of the law by the parties and the lack of legal
basis reproduced in the appendix and then, moreover, according to the appeal, that the
penalty clause is only binding on the co-contractor who actually accepted it before the
creation of the contract; that certain acceptance of the clause may not result from the mere
execution of the contract containing it, even more so when it is not even signed by the
parties; that in this case, the appellate court inferred the applicability of the clause
stipulating a late penalty from the sole execution by the Société nouvelle of the work
ordered by the Entreprise industrielle by an unsigned agreement dated 17 February 1984
without at all justifying in what way the Société nouvelle had necessarily accepted this
clause whereas on the contrary it supported having refused to sign the contract providing
for such indemnity precisely due to the risks affecting the construction work inevitably
connected to the uncertain nature of the subsoil where the drilling operations had to be
executed; that by ruling as such, the decision by the appellate court has no legal
foundation under Articles 1134, 1152 and 1228 of the Civil Code;

But whereas, firstly, after having noted that among the provisions in a document sent on
20 February 1984 by the Entreprise industrielle to the Société nouvelle and concerning the
conditions for carrying out the work in dispute was included a clause setting its turnaround
time as well as the methods of application of late penalties if it is exceeded and that the
Société nouvelle raised no objection to the receipt of letters on the 12th and 21st of March
1984 modifying this deadline and specifying that exceeding it would lead to, in accordance
with the contract, late penalties, the appellate court has sovereignly considered that this
company had knowingly accepted the penalty clause by execution of the contract, the lack
of a signed contract being insignificant;

Whereas, secondly, that having observed, excluding any violation of the law of the
contract, that the completion date for work assigned to the Société nouvelle was
postponed to 11 May 1984, i.e. 12 business days after the due date “according to the
latest agreements of the parties," and that the only cause for this postponement was the
delay by the subcontractor in completing the work, the appellate court legally justified its
decision;

From which it follows that the argument is not based on any of its prongs;

FOR THESE REASONS:

THE APPEAL IS REJECTED
Publication: Bulletin 1991 IV N° 234 p. 164

Contested decision: Court of Appeals of Rennes, on 6 December 1989

Titles and summaries: CONTRACTS AND OBLIGATIONS - Execution - Penalty clause Application - Clause penalizing the delay in contract performance - Acceptance by the
debtor - Acceptance resulting from execution of the contract - Lack of signature - Lack of
influence It is in the exercise of its sovereign power that an appellate court held that a
party to a company contract had knowingly accepted the penalty clause stipulated in case
of delay in the completion of work by execution of the contract, less important is the lack of
signature of the contract.

CONTRACTS AND OBLIGATIONS - Execution - Penalty clause - Clause stipulated for
simple delay - Execution of the primary obligation - Acceptance by the debtor - Sovereign
judgment BUSINESS CONTRACT - Liability of the contractor - Delay in the performance
of work - Penalty clause - Sentencing of the subcontractor - Acceptance of the clause
resulting from execution of the contract BUSINESS CONTRACT - Subcontractor –
Responsibility - Delay in the performance of work - Penalty clause - Failure to sign the
contract -Acceptance of the clause resulting from execution of the contract