Stéphane Brena is a lecturer in private law at the University of Montpellier (faculty of law, Centre du droit de l’entreprise) where he teaches contract law, property law, company law, banking law and real estate law. Research director in law, he directs several doctorate thesis. His research mainly focuses on contract law and business law: commercial and residential leases (Revue des loyers), self-employed commercial agents (Lettre de la distribution) and real estate agents (Jurisclasseur). He was Attaché for higher education cooperation at the French Embassy in Djibouti from 2017 to 2018 and, since 2021 the director of the Institute of International Business Law of the University of Paris 1 Pantheon-Sorbonne in Cairo (Egypt), where he still teaches.
128
Facts. A commercial agency contract signed in 2004 was terminated by the principal without notice or compensation. In its letter of termination dated January 23, 2015, the principal claimed that the agent had committed serious breaches of his obligations, and that these breaches - deprived of (...)
225
Facts. In 1998, an agency agreement was concluded between a Czech company and a sales agent of the same nationality. The contract mainly concerned the distribution of telecommunication services and the sale of cell phones, and stipulated a single lump-sum remuneration for all new contracts (...)
164
Facts. An intermediary company had a relationship with another company producing/distributing visual and audio guidance systems in car parking lots, based on a contract, repeatedly renewed, entitled "business contributor contract", for a geographical area covering France, Belgium, Luxembourg, (...)
57
Facts. A company, providing digital press publishing services to magazine publishers, had entrusted a distributor with "representation, prospecting and development" assignments under successive contracts since 2008. In 2016, the parties entered into a new contract, entitled "commercial agent (...)
65
Facts. Since 2008, a company had been working as a commercial agent for a principal who had clearly tolerated the representation of competing products by the agent. In 2013, a commercial agency agreement was signed by the same parties, expressly stipulating that the agent " may not accept the (...)
55
Facts. A company specializing in the purchase of companies entrusts another company, specialized in the search for investors, with the task of assisting it in the raising of the funds necessary for the presentation of a continuation plan for a target company, under the terms of a "fund (...)
33
Facts. A commercial agency contract was concluded in 2007 for the distribution of wines and spirits, between a principal and a legal entity agent (EURL whose sole partner was the manager, named Oenophil and registered with the RCS of Bayonne). The contract expressly states its intuitu personae (...)
76
Faits. Les agents immobiliers peuvent recourir, afin d’organiser leur force de vente, à des agents commerciaux. C’est ainsi qu’un intermédiaire a conclu en 2018 un contrat d’agence commerciale avec un mandant, agent immobilier. Quelques mois plus tard, ce dernier rompt unilatéralement le (...)
87
This article was first published in the Lettre de la distribution published by the Centre du Droit de l’Entreprise of the University of Montpellier. Facts. Specialized in the marketing, by brokerage, of credit and loan insurance, SAS Réponse Financement has set up a network of franchisees (...)
84
Mistakes about the person of the contracting party or about his essential qualities are rarely accepted as grounds for nullity of the contract. This was the case in the judgment under comment, concerning an exclusive distribution contract. Facts. The company Filorga, a producer of medical (...)
45
Faits. Une société étrangère avait conclu, en 1982, un contrat d’agence commerciale lui conférant exclusivité de diffusion des produits (champagne) de plusieurs mandants – la SA Champagne Beaumet Chaurey et la SA Champagne Oudinot Jeanmmaire – « pour tous les pays étrangers à l’exclusion de la (...)
93
Cet article a fait l’objet d’une première publication dans la Lettre de la distribution publiée par le Centre du Droit de l’Entreprise de l’Université de Montpellier. La qualification d’agent commercial, et singulièrement le pouvoir de négociation dont il doit être investi de manière (...)
193
Powers of the commercial agent: still... and finally ?* The power to negotiate, which is essential to the qualification of commercial agent, is once again at the heart of two recent decisions, one by the Commercial Chamber of the Court of Cassation, the other by the Paris Court of Appeal, (...)
191
The French Supreme Court decides that the principal does not have to pay a commission and does not breach his obligation of loyalty by contracting directly with a client located outside the area entrusted to the commercial agent and who distributes the products in the geographical area of the (...)
157
The recomposition of the field of distribution is underway: the imperialism of the category of commercial agents, catalysed by an extensive conception of negotiating power, tends to significantly reduce that of brokers. Recent jurisprudence seems to give rise to the notion of "putting in (...)
144
In the first case (judgment of 27 Jan. 2021), a contract entitled "business contributor contract" was terminated by the principal, as a result of which the service provider sued it for payment of a termination fee, arguing that the contract should be reclassified as a commercial agency. The (...)
95
Facts This decision provides further clarification of the effects of the commercial agent’s serious (or at least allegedly serious) misconduct on the allowance for termination of his relationship with the principal, where such misconduct was discovered after the relationship was terminated; (...)
87
Facts and procedure The decision to operate the activity of commercial agent under cover of an EURL must be carefully weighed in view of the consequences it is likely to produce; consequences produced by the screen that the legal personality of the company constitutes. In the present case, (...)
172
Facts and procedure. It was not long before the broad interpretation of the commercial agent’s bargaining power, delivered by the ECJ in its judgment of 4 June 2020 (No. C-828/18, Trendsetteuse SARL v. DCA SARL, Lettre distribu. 06/2020, nos. obs. ; Rev. conc., No. 3-2020, p. 107, obs. N. (...)
154
Facts and procedure. Real estate agents very frequently use commercial agents in the organisation of their sales force. This possibility, which has been difficult for some time, is enshrined in Article 4(2) of Act 70-9 of 2 January 1970 as amended by Act 2006-872 of 13 July 2006. The (...)
273
Facts. A contract entitled "commercial representation" was entered into on July 13, 2012, to market a food sterilization process. The contract provided, on the one hand, that the broadcaster (Natprocess) had to respect a minimum selling price set by the producer (FCD); on the other hand, an (...)
309
The serious misconduct of the commercial agent, depriving him, at the time of the termination of the contract, of any right to compensation and of any notice period, gives rise to a lively dispute not only as to its characterization but also as to the moment at which it may be invoked by the (...)
146
Facts and procedure. It took eighteen months before the Court of Justice delivered its interpretation of the power of negotiation, with which the commercial agent must be endowed on pain of disqualification of his relationship with the principal and denial of the status of Articles L. 134-1 et (...)
124
The broadcaster’s remuneration on a commission basis requires the supplier to allow the broadcaster to verify the amount due to it, even if the qualification of commercial agent is disregarded. This is, implicitly, the lesson to be learned from a ruling handed down on 23 April by the (...)
806
Facts and procedure. Several commercial agreements, concluded between 2002 and 2011, linked costume jewellery producers and a retailer (Auchan). Believing that these agreements included false commercial cooperation services, the producers sued the distributor, by deeds of 27 December 2011 and (...)
114
Facts. A distribution company, a member of the Intermarché network, was placed in receivership, the court having adopted a plan of sale in favour of two purchasers, authorised to substitute a company to be set up between them. In accordance with the provisions of Article L. 642-7 of the French (...)
156
In view of its seniority and the abundance of litigation it generates, the status of commercial agents is the subject of solutions that are now classic, which judges are regularly called upon to recall. Nevertheless, it is the seat of difficulties, whether recurrent or new, which are not (...)
80
As a touchstone of the status of commercial agents, Article L. 134-12, paragraph 1 of the French Commercial Code provides: "In the event of termination of relations with the principal, the commercial agent shall be entitled to a compensatory indemnity to compensate for the loss suffered". By (...)
99
Since a law of 21 March 1941, the provisions of which are now codified in Articles L. 7321-1 et seq. of the Labour Code, the "branch manager" benefits from a partial extension of employment law as long as he meets the conditions set out in Article L. 7321-2. In spite of the absence of a (...)
101
An original figure which has long been apprehended, in ordinary contract law, by case law alone, the assignment of a contract is now governed by articles 1216 to 1216-3 of the Civil Code, resulting from the Order of 10 February 2016, which makes it a solemn contract (Civil Code, art. 1216, (...)
158
Contract for valuable consideration, the commercial agency contract entitles the agent to remuneration; contract of common interest, it gives rise to compensation of the commercial agent on termination of his relationship with the principal. It is with these two aspects of the status of (...)
253
On the occasion of a merger, Econocom, the principal, proposed and obtained from its commercial agent, SD Lease, the conclusion of a new agency contract modifying the basis and rate of its commissions - the rate of 6% of turnover is substituted for 9% of the gross margin - and including a (...)
96
By the judgment under comment, the Court of Cassation very usefully completes the jurisprudential system for dealing with the question of the conditions under which the principal can claim serious misconduct on the part of the commercial agent. First, the Court of Justice (ECJ, 28 Oct. 2010, (...)
118
The commercial agent is protected by the recognition of a right to an indemnity at the end of the contract under the conditions provided for in Articles L. 134-12 and L. 134-13 of the French Commercial Code. The first of these texts lays down the principle of the right to compensation in the (...)
189
The CEPC was seized of the question whether "the clause in a sales commission contract requiring the principal alone to pay its commission agent, in the event of non-renewal of the contract, whoever the non-renewer and whatever the cause of such non-renewal, an indemnity of an amount (...)
150
The need to qualify a contract, allegedly as a commercial agency, may arise in an international context, a situation which raises not only the question of the application of the criteria for qualification but also, perhaps more thorny, that of their identification. A contract, entitled the (...)
133
A commercial agency contract is a contract of common interest which is subject to a bilateral obligation of loyalty (Com. C., art. L. 134-4). Failure by the principal to comply with this obligation makes it possible to attribute to him the breach initiated by the agent and thus to maintain the (...)
177
The sales agent must control the behaviour of his own sales force. This is the main lesson that can be drawn from the judgment under comment. Company N, whose purpose is the marketing of dietary supplements, uses, under a commercial agency contract in 2006, the exclusive services of Company (...)
138
As a professional presenter, the sales representative must be paid for the work he does for his employer’s clients. Article L. 7311-3, 4°, of the Labour Code thus stipulates that the contract concluded between the sales representative and his employer must specify "the rate of remuneration" of (...)
96
A sub-contract is a contract whose subject matter is all or part of the performance of a main contract. This situation is frequently encountered in contracts relating to services and, in particular, commercial agency contracts. In this case, the sub-agent is nothing other than a commercial (...)
270
The principle of revocability ad nutum of the agent - without notice or compensation -, provided for in Article 2004 of the Civil Code and justified by the altruistic nature of the agency contract, is set aside when the contract can be qualified as being in the common interest. According to (...)
135
Transparency and loyalty are the hallmarks of the relationship between the principal and the commercial agent. At least this is how the regulation of the agency contract conceives things, as Article L. 134-4, paragraph 2, of the Commercial Code states that "the relationship between the (...)
150
Although the question of the possibility for an estate agent to use the services of a commercial agent has now been settled (L. n° 70-9, 2 Jan. 1970, Art. 4, from L. n° 2006-972, 13 Jul. 2006, Art. 97), the determination of the rights of the commercial agent on termination of relations with (...)
185
While French domestic case-law tends to reduce the scope of the qualification of commercial agent, through a restricted conception of the concept of negotiation and a general requirement of power of representation conferred on the agent, the Court of Justice of the European Union, referred to (...)
232
The submission of a contractual relationship to the protective status of commercial agents presupposes that it falls within its scope. As the Toulouse and Paris judges recalled, in the same terms, on the occasion of the two cases under comment, "the application of the status of commercial (...)
55
Non-renewal of the agency contract: systematic compensation of the commercial agent* Can a commercial agent who refuses to renew a fixed-term agency contract claim the indemnity provided for in Article L. 134-12 of the Commercial Code? The position of the case law on this issue seemed to (...)
60
Post-contractual non-competition clause and commercial agency contract: the absorption of special law by common law ?* The termination of the commercial agency contract in principle releases the agent from his obligation of loyalty towards the principal, by allowing him to carry on a (...)
69
Commercial agency: disloyalty discouraged but proof of commission entitlement favoured* The performance of a commercial agency contract requires each party to respect its commitments. Thus, the commercial agent must perform his duties with loyalty, which is reflected in the contractual (...)
93
Rights and obligations of the commercial agent: rigour is required* The status of commercial agents includes provisions relating to the obligations of the distributor and the rights that he may exercise against the principal. These two aspects are addressed by the judgment under commentary, (...)
57
Commercial agency and bargaining power: a missed opportunity?* The application of the protective status of commercial agents presupposes that the contractual relationship between the principal and the agent meets the qualification criteria set out in Article L.134-1, paragraph 1 of the (...)
