All entries for November 2011

November 29, 2011

International labels protecting food specialities

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Reading my new cooking book, I asked me a question : is it true that, as said Jamie Oliver, England doesn't have any label protecting foods specialities, as the french AOC Label (1)? This question deals with the interests of Consumers who can know what they are eating, its origins, how it is producted, etc. ; the one of Local producers who can increase in value their products, prooving that they follow a special and traditionnal method of production etc. And we know how tourists -but locals so- are fan of this « traditionnal » things. But it also concerns Bigger Producers who have to take care about how they make and how they call there products.

Making some researches I've found that if France is a reference in this matter, having protected his famous cheese and wine for a long time (2), its system - and notably the AOC Label (« Appelation d'origine controlée »)- inspired two international Labels :

The international « Appelation of Origin »

Creaded by the Lisbon Agreement in 1958 , this Label is administered by the International Bureau of the World Intellectual Property Organization (WIPO). It covers « the geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors »(3). It has currently 27 member countries, among them France, but Germany and England are not part of this organization (4). it protects products like Porto (Portugal), Champagne (France), Tequila (Mexique) - (5). This topic will be re-debate in december 2011 in Genève by the actual working group on the development of the Lisbon System (Appelation of Origin) - (6).

The European Protected Designation of Origin (PDO)- in french AOC ("appelation d'origine protégée.")

This Label was introduced in 1992 and is today coverred by a regulation of 2006 (7), which was modified in 2008 (8). It protects, as said in the European Commission website «agricultural products and foodstuffs which are produced, processed and prepared in a given geographical area using recognised know-how. » (9). Moreover, there are two other relevant labels protecting the goods, the PGI (protected geographical indication) and TSG (traditional speciality guaranteed) (cf. 9). And, as shows the official databases, some english products are protected by this Label like white Stilton cheese, Blue Stilton cheese, West Country farmhouse Cheddar cheese (…). So "Jamie" was wrong : England Protects its food, and particularly his Cheddat! Of course still not so good as France in terms of quantity of products protected (currently 17 english v. 82 french products protected by this label). The quality of the protection allowed doesn't seems to be better either. For instance we can question the power of the well-named "West Country farmhouse Cheddar cheese" label : Do the english consumers really distinguish between this Cheddar and another one?

(PS : Thank you girls for the book!)

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  1. Jamie does... easy twists on classic dishes inspired by my travels, Ed. Pjoseph Michael, 22/04/10, p 284 : « Something France really gets right is the way it fights to protect the heritage and integrity of its food products and producers (…) by the AOC label (appelation d'origine controlée or « controlled term of origin »). (…) I think it's a shame we don't really do that in England. Just think : if Cheddar...».

  2. The first protection was the « Appelation Châteauneuf-du-pape » for wine in 1933.

  3. Lisbon Agreement, art 2 (1) http://www.wipo.int/lisbon/fr/legal_texts/lisbon_agreement.html

  4. About the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, see : http://www.wipo.int/lisbon/en/general/

  5. To search Appelation of Origin (Lisbon Express) : http://www.wipo.int/ipdl/en/search/lisbon/search-struct.jsp

  1. Drafts and notes of the working Group on the development of the Lisbon System (Appelation of Origin) in http://www.wipo.int/meetings/fr/details.jsp?meeting_id=24524

  2. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006R0510:EN:HTML

  3. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:173:0003:01:EN:HTML

  4. European Commission, Agriculture and Rural Development, http://ec.europa.eu/agriculture/quality/schemes/index_en.htm


November 23, 2011

Negligent and innocent misrepresentation (UK) v. Mistake as to the substance (France)

Whereas English law focusses on the concept of « Misrepresentation », subdivided in fraudulent, negligent and innocent misrepresentation, French law distinguishes between Dol (fraudulent misrepresentation) and Erreur sur la substance (Mistake as to the substance of the contract) – (1)

rjo0248l.jpg

The rules concerning dol and fraudulent misrepresentation are quite similar : where there is an intent to deceive and knowledge that the information provided is false, the other party can claim for damages and rescission of the contract (2&3). The most relevant difference between these two systems concern the so-called "negligent and innocent misrepresentation" and" mistake as to the substance": Whereas English law focusses on the act of one party (misrepresentation), french law focusses on its consequences concerning the act of the other party (mistake as to the substance). As a result, the English law borders more the scope of its protection and consequently the possibility of remedies than French law.

Scope of the protection -

Under english law, a mistake has to be based under an act of misrepresentation of the party, that is to say a positive act of the party. Consequently a party is under no duty to disclose facts even if (s)he is aware that knowing the facts would make a difference to the other party (4). On the other hand french law imposes an “obligation d'information” (duty to disclose facts) to the seller (/!\ but still not to the buyer, e.g. in the case of an auction). As a result it punishes omissions like silence, even if there was no intent to deceive. However this difference reduces through the influence of E.U law. For instance today English law does recognize a limited group of cases in which a duty of disclosure is imposed upon the parties to the contract (contracts of “good faith” or contracts “uberrimae fidei”), such as insurance contracts, fiduciary contracts or consumer contracts (5).


Remedies allowed by the courts - ;

Onces again, the French rules were more protective than the English ones, which are rather based on freedom of contract. French law allows since a long time the right of rescission of the contract in case of mistake as to the substance (6) which was not the case of english law. But the regimes concerning Mistake as to the substance (“erreur sur la substance”) and innocent and negligent misrepresentation come closer together since the English Misrepresentation act (7) which allows a party to rescind the contract or to obtain damages in lieu of rescision if “it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.” The british courts considers in case of negligent misrepresentation, that is to say when the defendant carelessly makes a representation while having no reasonable basis to believe it to be true, this rescission and damages will always be allowed (8). In case of innocent misrepresentation, i.e. when the representor had reasonable grounds for believing that his or her false statement was true, are let to the appreciation of the judges, the courts do also allow rescission if the statement in question was (1) very important and (2) already spoken. Then, they can consider it as a term of the contract and applying the rule of breach of contract (9).

This comparisom shows the different ways England and France have balanced two interests in Law : to punish the wrongdoers (and just them?) v. to provide remedies for (any?) loss suffered. But it shows also the different essences that is given to the notion of contract : For the French law, a contract cannot exist without any "cause", any aim, whereas the english law requires just a consideration provided to the other party, i.e. an economical exchange.

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  1. NB : But this distinction is today criticized, dol causing the Mistake as to the substance of the contract of the other party as well. c.f. J. GHESTIN, La réticence, le dol et l'erreur sur les qualités substantielles, D. 1971, chron. 247 ].

  2. In English law, c.f. Hedley Byrne & co ltd v Hellers & partners ltd

  3. In French law, c.f art 1116 and 1117 code civil concerning the rescission and Cass. Com and 15 janvier 2002 concerning the damages

  4. c.f Keates v Cadogan [1851] 10 CB 591, Bradford Third Equitable Benefit Building Society v. Borders [1941] : “MERE silence, however morally wrong, will not support an action of deceit”

  5. e.g. Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantee – art 2 :

    Consumer goods are presumed to be in conformity with the contract if they: (…) (d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.”

  6. French civil code, art 1117.

  7. Misrepresentation act 1967 – section 2(2)

  8. Hedley byrne v heller, Esso Petroleum co ltd v mardon (Lord Denning stated the rule by transporting the tort of negligence into contract law).

  9. [Birch v Paramount Estates (1956) 167 EG 196].


November 09, 2011

Explication : the revocability of the offer

Follow-up to The postal rule – Acceptance sent through the post from Aurelie's blog

This difference can be explained by the difference concerning the revocability of the offer in the 3 systems. Whereas German law considers the offer as irrevocable (1), French and English law accept this possibility of revocability in the name of freedom of contract, but with some limitations or exceptions.

The revocability of the offer is possible in England only when no consideration was provided and in case of bilateral contracts (2). In France, the general possibility of revocation (3) is limited to a “reasonable time” by jurisprudence (4). Moreover can the offeror bound himself by proposing a period of validity of the offer (5), which is not possible under English law (6). But this liability is limited to damages. Indeed, French law refused to govern pre-contractual period by contract law, and let apply tort law (droit délictuel) in such situations.

As said before, the choice between the two principal theories of emission and reception allows to answer in three different situations between the time the letter of acceptance was sent and the time it arrives :

- Did the offeree miss the deadline proposed by the offeror to accept the offer?

- Can the offer be revocked by the offeror?

- Is the offeree which send an acceptance and revocked it just after by mail bound when both arrived at the same time? NB: an acceptance is always NOT revocable when the contract was concluded, but is here the contract concluded?

The answers to the first and third question depend purely on the applicable theory. The answer to the second one depends on the applicable theory AND on the applicable law. Indeed, German law which doesn’t allow to revoke the offer has no interest to choose the theory of emission, which will just add problems concerning proofs for the 1st and 3rd situations. On the other hand, English and French law need this theory to protect the offeree from offeror’s revocation during this period.

There’s still one question: why does French law in this Avant projet Catala opt for the reception theory? This project conserved the possibility of revocability and its limitations, but allows the offeree to enforce the contract when it’s not respected (7). As explained by the authors, This “progress” in favour of the offeree is compensated by the theory of reception, which protects more the offeror, and reinforces its possibility to revoke the contract (8)…

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(1) 145 BGB<http://www.gesetze-im-internet.de/bgb/index.html#BJNR001950896BJNE031602377>

(2) Dickinson v. Dodds, 2 Ch. D. 463 (1876). For unilateral contracts, cf. Daulia Ltd v Four Millbank Nominees Ltd [1977] EWCA Civ 5

(3) Civ., 3 févr. 1919, DP 1923. 1, 126. But there are some situation where French law forbid to revoke the offer during a précised time such as consumer credit law (15 days), electronical contracts (while it is accessible on the website)…

(4) Civ. 3e, 25 mai 2005, no 03-19.411 , Bull. civ. III, no 117 ; CCC 2005. no 166, obs. Leveneur.

(5) Civ. 3e, 7 mai 2008, no 07-11.690, Bull. civ. III, no 79 ; D. 2008. AJ 1480, obs. G. Forest ; Pan. 2969, obs. Amrani Mekki ; RTD civ. 2008. 474, obs. Fages ; CCC 2008, no 194, obs. Leveneur. - Déjà Civ. 1re, 17 déc. 1958, Bull. civ. I, no 579 ; RTD civ. 1959. 336, obs. J. Carbonnier.

(6)

(7) Avant projet Catala, art 1105-4

(8) Avant projet Catala, section “formation of contracts”, art 1104-1107, commentary by Delebecque P. & Mazeau, D., §3 “certainty” < http://www.justice.gouv.fr/art_pix/rapportcatatla0905-anglais.pdf>


November 01, 2011

The postal rule – Acceptance sent through the post

When does an acceptance sent through the post become effective? The answer to this question determines where and when the contract is formed, and allows to answer to three important questions : Did the offeree miss the deadline proposed by the offeror to accept the offer? Is a revocation made by the offeror between the time the letter of acceptance was sent and the time it arrives possible? Is the offeree which send an acceptation and revocked it just after by mail bind when both arrived at the same time?

There are 4 possibilities of answers :

  • when the offeree decide to accept (externalisation theory Äußerungstheorie)

  • when the offeree posts its acceptance (expedition or emission theory, dispatch theory, “postal rule”, übermittlungstheorie).

  • when he recieves the acceptance (reception theory, Empfangstheorie) - with presumption he will knew it.

  • when the offeror knows the acceptation (information theory, Vernehmungstheorie)

The most extrem possibilities (the 1st and the last) are innapplicable for proof reasons.

English law opted for the emission's theory under its “postal rule” (1), and then limits its application. For instance it's only applicable when it was reasonable to use post as a method of acceptance (2), the letter of acceptance was properly posted (3) and it didn't produced a “manifest inconvenience and absurdity” (4)

French civil code doesn't generally regulate this matter (5). French Cours de cassation decided for a long time that it was a question of facts, and should be decide “following the circumstances of the case” by the judges (6). Sometimes it decided to apply the expedition theory, sometimes the reception theory. But it definitely decided to support the emission theory in 1981 if the seller didn't stipulate anything (7). However it could change in a few years, a current law project recommending to delete it and to replace it by the reception theory (8). This theory has the inconvenience to protect more the seller than the buyer, seller who already often imposes his terms and conditions, for instance in consumer relationship.

Can we accept that a second acceptance from an other place after ours, which arrived before ours because of a strike in our post center is valid and that we consequently loose the contract? Is the contract law a game in which the more lucky win?

Anyway, today the reception theory (Empfangstheorie) is not out-of-the-way : German law opted for it in §130 BGB (9), just like the CISG (10) and Unidroit principle chose the reception theory (11).

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  1. Adams v Lindsell (1818) 1 B & Ald 681, confirmed in Dunlop v Higgins (1848) 1 HLC 381.

  2. Henthorn v Fraser [1892] 2 Ch 27. For instance, it doesn't apply if the offeree knows that there is going to be some delay to his acceptance due to an event such as a postal strike.

  3. Getreide-Import GmbH v Contimar SA Compania Industrial, Comercial y Maritima [1953] 1 WLR 207 (misaddressed acceptance).

  4. Holwell securities Ltd v Hugues [1974] 1 WLR 155 (CA), per Lawton L.J

  5. But art 932 code civil choose the “reception” system concerning donation contracts and art 1985 choose emission system concerning power of attorney (mandat).

  6. Cass. req. 6 août 1867

  7. Cass. com. 7 janv. 1981, Bull. civ. IV, no 14, RTD civ. 1981. 849, obs. F. Chabas

  8. Avant-Projet Catala, Art 1107.

  9. Art 130 BGB : Effectiveness of a declaration of intent to absent parties; (1)A declaration of intent that is to be made to another becomes effective, if made in his absence, at the point of time when this declaration reaches him. It does not become effective if a revocation reaches the other previously or at the same time.

    See statement in http://dejure.org/gesetze/BGB/130.html

  10. United Nations Convention on Contracts for the International Sale of Goods, art 18 : “A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance”.

  11. Unidroit principles of international commercial contracts 2010 – art 2.1.6-2° : “An acceptance of an offer becomes effective when the indication of assent reaches the offeror”.

Sources :

Patrick CHAUVEL, localisation du consentement dans le temps et dans l'espace, répertoire de droit civil DALLOZ (online), CONSENTEMENT, section 5, notes 238-255.

E. Mckendrick, Contract law, Text, cases and materials, 9rd ed. Oxford press.

Einsele, MüKo-BGB, §130.


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