Clémence Mouly-Guillemaud is lecturer at the University of Montpellier and director of the Magister-DJCE (University diploma, Advanced Business Law Program). She mainly teaches contract law (obligations, contractual technique) and patrimonial family law (matrimonial property, successions). Co-author of a work proposing contract law tutorials (LexisNexis, since 2009), her major research and publications centre around sudden break of established business relationships (L. 442-6, I, 5° Commercial code). She is co-director and co-redactor of L. 442-6, I, 5° application part, in the T.IV, L. IV commercial code jurisprudential assessment for the Commission in charge of examining commercial practices (CEPC) and she’s in charge of a monthly column on the same theme in La Lettre de la Distribution (Distribution law monthly review).
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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 (...)
47
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 (...)
60
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 (...)
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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 (...)
62
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 (...)
31
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 (...)
67
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 (...)
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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 (...)
106
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 (...)
117
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 (...)
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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 (...)
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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 (...)
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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. (...)
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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 (...)
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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 (...)
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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 (...)
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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. (...)
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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. The decision of 24 October 2018 will delight practitioners, too often confronted with the inadmissibility of their claims before the (...)
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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 (...)
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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 (...)
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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 (...)
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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 (...)
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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 (...)
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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 (...)
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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 (...)
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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 (...)
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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 (...)
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