Clémence Mouly-Guillemaud

Abrupt termination exempted by the pandemic when it identifies a case of force majeure* The facts in dispute began with the suspension, on 17 March 2020, and then the termination 3 months later, with 3 months’ notice, of the nearly 15-year relationship under which a subcontractor had been (...)

No liability of the parent company for the breach of contract by its subsidiaries without interference (Nos. 1 and 2) The Facts In cases 1 and 2, the operator sued the parent company for compensation for the brutal termination of the relationship maintained by its subsidiaries. By seeking the (...)

Facts A carrier was initially linked to a first company for one year when the latter went into receivership and was subsequently sold all its assets. The transferee having allowed itself a partial substitution option in favour of its subsidiary, the latter approached the carrier and concluded, (...)

Facts In 2002, a paint manufacturer granted a retailer in Toulouse the exclusive distribution of its products in the city in exchange for a minimal supply. The relationship continued peacefully when, fourteen years later, the supplier informed its distributor of the opening of two corners for (...)

Background Decree no. 2009-1384 of November 11, 2009 introduced a concentration of litigation under the former Article L. 442-6 of the Commercial Code by restricting the number of courts with jurisdiction to hear its application (see Art. D. 442-3 and its Annex 4-2-1 to which former Article L. (...)

Background The Court of Cassation has long held that the former Article L. 442-6, I, 5° (and no doubt the new Article L. 442-1, II) of the Commercial Code is a matter of public policy, the judge then assessing the conditions of its application freely, i.e. without being bound by contractual (...)

Facts. A manufacturer of cosmetic products is annoyed by the poor stock management by its exclusive distributor in Italy. Linked to the distributor since 1998 by fixed-term contracts tacitly renewable for one year at the end of the first three-year contract, he prefers to announce the (...)

Background. One recalls the divergent interpretation, between the Paris Court of Appeal and the Court of Cassation, of the scope of article L. 146-4 C. com, which provides for a termination indemnity where the principal is at the origin of the termination of the contract. Because the former (...)

Facts. While the company Hôtel Trianon de Versailles has been using the services of a chauffeur-driven car rental company to transport its clients for the past 13 years, it cancels by e-mail the three trips scheduled for the following weeks and definitively ceases to solicit this rental company. (...)

The facts. Claas, an importer of equipment, particularly agricultural equipment, has been in contact since 2004 with a seller-repairer of the same type of equipment. Since that relationship was formed after the importer took over the management lease of the business of Renault Agriculture, (...)

Facts. The defendant is an EIG whose object is to facilitate the activity of its members, mutual insurance companies, in the management of insurance claims for assistance and repairs in kind relating to housing. For this purpose, it regularly calls upon the services of numerous construction (...)

The facts. Two German companies and a French company have been working together for more than twelve years to distribute in Germany industrial bakery products manufactured by two sister companies of the French company. At the end of the last contract and in the absence of agreements between the (...)

Facts. In March 2015, Brico Dépôt informs the manufacturer who has been supplying it with exotic wood windows and window doors since the end of 2014, of the implementation of a call for tenders and of the termination on the same date, i.e. the end of December 2015, of the supply contract that (...)

Fault and tolerance According to the facts of Decision No. 18-20781, a customer, whose business is the installation and maintenance of air systems in aircraft, breached the contract between it and its supplier of precision mechanical parts due to breaches of performance commitments in the (...)

We are aware of the very strict case law in the assessment of the fault likely to justify a breach without the notice required by the former article L. 442-6, I, 5°, which became article L. 442-1, II, C. com. It has sometimes explained this, emphasising that if the text does not specify ’neither (...)

Background. The practical implications of the lack of autonomy of the extra-contractual concept of the "established relationship" and of the contracts on which it is based are as numerous as they are daunting. Because contracts and the relationship are necessarily intermingled, many litigants (...)

An apparent duplicate. Because the provisions of article L. 442-1, II (formerly article L. 442-6, I, 5°) of the Commercial Code sanction by extra-contractual liability the breach without sufficient foresight of a commercial relationship which itself is based on a contract whose content, if not (...)

Typology of exclusions from the scope of Article L. 442-6, I, 5°. The scope of application of the former Article L. 442-6, I, 5° C. com. and the new Article L. 442-1, II, is constantly being questioned. By induction, we thought to identify three types of exclusions. The first concern areas that (...)

Case law consistently identifies the relationship established, within the meaning of article L. 441-2, II (formerly L. 442-6, I, 5°) C. com. by the existence of a flow of business. More precisely, it "means commercial exchanges concluded directly between the parties, of a continuous, stable and (...)

Article D. 442-3 of the French Commercial Code, to which former Article L. 442-6, III, now L. 442-4, III, referred, lists the courts entitled to hear disputes relating to restrictive practices. It is well known that this specialisation specifically misleads the litigant invoking an abrupt (...)

Decisions handed down in matters of abrupt termination of a commercial relationship established pursuant to the former Article L. 442-6, I, 5° C. com. (now Article L. 441-2, II) are not always reconciled with each other. Each of the principles set out is decided the other way round, as is shown (...)

The new Article L. 441-2, II, of the French Commercial Code repeats the precision of the former Article L. 442-6, I, 5° exempting the author of a resolution for failure to comply with the prior notice requirement. Nevertheless, if the "paragraph does not specify the nature or degree of (...)

The continuation of the relationship in the event of a sale of the fund After having affirmed, without the slightest reservation, that the assignee of a fund which is addressed to an economic partner of the assignor was continuing the relationship of his predecessor (Com., 2 Nov. 2011, No. (...)

Order No. 2019-359 of April 24, 2019 (on which, see N. Eréséo’s Focus, supra) simplifies practices that restrict competition. However, if we focus on the sole sudden termination of a commercial relationship, now covered by Article L. 442-1, II C. com, the application of the reform will not bring (...)

In principle The December 2018 Letter was an opportunity to welcome an important decision of the Court of Cassation (Com., 24 October 2018, No. 17-25672) intended to condemn the Paris Court of Appeal’s incomprehensible reading of the principle of non-cumulation of liability orders, which held (...)

Still insufficiently conceptualized, the abrupt rupture of an established commercial relationship is refined according to its applications. It also evolves and current events show that nothing can be taken for granted in this type of litigation. Scope of application Consistency is the order (...)

The abundant litigation of the abrupt termination of an established commercial relationship is nourished by subtleties that the theoretical analysis of the mechanism too often neglects. Current events provide an opportunity to stress the importance of some of these details before the judge. (...)

The decision of 24 October 2018 will delight practitioners, too often confronted with the inadmissibility of their claims before the Paris Court of Appeal, on the sole ground that they were aimed cumulatively at the contractual and tortious liability of the contracting party responsible for a (...)

The trust that partners have in each other could, in itself, explain the raison d’être of art. L. 442-6, I, 5° C. com. founding the concept of relationship and the resulting thoughtfulness. The ’established relationship’, a concept distinct from a contract, appears to be based on the trust which a (...)

Two categories of relationship are outside the scope of article L. 442-6, I, 5° C. com. Broadly speaking, these are, on the one hand, relationships governed by a special text and, on the other hand, certain civil activities. That said, the field does not appear to be limited in a straight (...)

While the identification of the established nature of a commercial relationship is largely a matter of the individual case, the lawyer likes the security afforded by a few objective criteria for its identification or, on the contrary, its precariousness. However, these criteria should be (...)

The harm caused by the abrupt termination of an established relationship is not assessed but calculated according to an equation, which is in theory simple: it is the product of the average monthly flow of business previously done, the margin the victim was making and the number of months of (...)

Much less lenient is Decision No. 15/09702. It is true that the non-performance had not yet been proved, whereas the new Article 1120 of the Civil Code, which allows the suspension of performance for a manifest risk of non-performance, is not applicable to these earlier acts. However, during (...)

The protection sought by Article L. 442-6, I, 5° C. com. is intended to allow the conversion of an economic partner. At least in theory, as the application of the text would lead to doubts. Oscillating between an approach to the notion of an ’established relationship’ which is so concrete that it (...)

A designer and manufacturer of clothing claims to have been in relationship since 2004 with the company Brice, which markets clothing in specialized stores. The orders presupposed that the models had been selected the previous year on the occasion of the biannual collection presentation (...)

Once a restrictive practice is invoked, the procedural rules governing the institution and conduct of proceedings become so complex that they offer a formidable defence to the unscrupulous defendant, who can easily avail himself of them, if not to request the inadmissibility of the claim, at (...)

The problem here posed to the Court could be a tiresome one, except that the lack of consistency in the solutions tends on the contrary to make it irritating. Moreover, the case had the added advantage of asking the Court to address both the problem of identifying the fault of brutality when (...)

Abrupt break, ad hoc clarifications and conceptual uncertainties* Article L. 442-6, I, 5° is not sufficiently conceptualized and its application is still not consistent, as illustrated by a few selected points in three recent decisions. I. - Is the intended termination abrupt? Need for a (...)

Identification of an established business relationship* Except for excess of power of the first court seized (see Com. 29 March 2017, n°15-17659, Lettre distr. April 2017), the Paris Court of Appeal is the only appeal court. Its judgments therefore deserve special attention. Unfortunately, the (...)

The victim’s conversion does not rule out brutality: yes, but...* The Court of Appeal’s resistance is organised... in time. The fault of brutality in application of article L. 442-6, I, 5° is assessed solely by comparing the notice period given with the one that should have been respected. It (...)

The repercussions of a transaction within the scope of Article L. 442-6, i, 5° C. com.* The dispute here decided by the Court of Appeal is the one that authorised a fine decision by the Court of Cassation, admitting the effectiveness of agreements organising the terms and conditions and (...)