Court of Cassation, No. 91-16.242

Court of Cassation, First Civil Chamber, 17 May 1993, No. 91-16.242

Mr. D

Vs.

Mrs. A

Miss C

On the sole ground:

Whereas, by deed dated 5th January 1988, Mrs. A. and Miss C. transferred to Mr. D. the shares they held in the company D.; whereas it was stipulated therein that, in order to determine the transfer price, an accounting statement drawn up on 31st December 1987 and verified by the auditor would be transmitted to Mr. D.; that the Arbitral Tribunal rejected the application for a stay of proceedings made by Mr. D. on account of the criminal complaint he had filed for forgery and falsification concerning the document transmitted and fixed the price of the shares; Whereas Mr. D. complains that the judgment under appeal (Paris, 24 January 1991) dismissed his action to set aside the award, whereas, according to the ground, the arbitrators, in failing to rule on the question of whether the situation presented on 25 February 1988 as having been verified could have been verified prior to its presentation, did not apply the rule that criminal proceedings take precedence over civil proceedings ("le criminel tient le civil en l’état") which was to be applied to the question submitted, Whereas the Court of Appeal, in considering that the arbitrators had ruled on this point and that their appreciation was beyond its control, violated article 1502, 58, of the new Code of Civil Procedure;

Whereas, however, the Court of Appeal stated that, in order to set aside the application of this rule, the arbitrators considered that the criminal proceedings were not of such a nature as to influence the judgment of the dispute and that there were sufficient elements to rule on the case; whereas it rightly decided that it was not up to it, in the context of the action for annulment brought before it, to review the relevance of the grounds thus set out; whereas the ground was therefore unfounded; and whereas the appeal was abusive in nature;

FOR THESE REASONS:

DISMISSES the appeal;

ORDERS Mr. D. to pay a civil fine of ten thousand francs to the Public Treasury; orders him, to pay the costs and expenses of the execution of this judgment to Mrs. A. and Miss C.;

ORDERS Mr. D. to pay Mrs. A. and Miss C. the sum of ten thousand francs on the basis of Article 700 of the new Code of Civil Procedure; Thus done and judged by the Court of Cassation, First Civil Chamber, and pronounced by Counsellor Grégoire at the public hearing of the seventeenth of May nineteen hundred and ninety-three, in accordance with Article 452 of the new Code of Civil Procedure.