In view of articles 8 II of the Law of 30 December 1082 and articles 1 and 15 of the applicable decree of 4 May 1988;
Given that, according to the judgment under attack (rendered after the first decision had been quashed on 9 July 2002, Bull. No. 121), the Société française de messagerie internationale (SFMI), now Chronopost, on two occasions promised Banchereau that a message addressed to the National Meat Office in connection with a competition of meat would be delivered by noon the following day, and that SFMI, when sued for damages by Banchereau who had been prevented from taking part in the competition because the messages were not delivered on time, invoked the clause in the contract which limited their liability for delay to the cost of the carriage;
Given that on the ground that in delivering twenty-four hours late the items entrusted to it by Banchereau on 22 January and 14 May 1991 and thereby exposing the consignor to serious loss, Chronopost was guilty of gross negligence and had thereby repudiated the performance of its obligation and deprived the contract of all content, the court below declined to apply the clause limiting the liability of the carrier pursuant to article 15 of the decree relevant to contracts of this type and held Chronopost liable in damages;
But given that the gross negligence which is required to oust the legal limitation of liability must be established by the conduct of the debtor and not by the mere fact that the obligation, however essential, was not performed, the court of appeal violated the texts mentioned above;
For these reasons QUASHES and ANNULS …
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