Clémence Mouly-Guillemaud

University of Montpellier, Centre de Droit de l’Entreprise (Montpellier)
Lecturer

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).

Articles

2993 Review

Clémence Mouly-Guillemaud Sudden termination: sets the compensation for the sudden termination of an established relationship on the basis of variable and atypical revenues (Inter Mutuelles Habitat / Terroise IDF)

93

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 (...)

Clémence Mouly-Guillemaud Sudden termination: The French Supreme Civil Court reaffirms that a third party may invoke a sudden break of relationships on the basis of Article 1240 Civil code (Back-Holding, Ibis Backwarenvertriebs / Atlantique productions, Biscuiterie pâtisserie carrée, Régals de Bretagne)

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 (...)

Clémence Mouly-Guillemaud Sudden termination: The Paris Court of Appeal suggests that an artificial call for tenders should rule out the brutality of the breach (Totem Menuiserie / Brico Dépôt)

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 (...)

Clémence Mouly-Guillemaud Sudden break: The French Supreme Civil Court holds a decision in the case of a breach excluding the special liability for sudden break of established business relationships (Système U, Knauf...)

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 (...)

Clémence Mouly-Guillemaud Sudden break: The French Supreme Civil Court pronounces inadmissibility of legal claims based on the principle of non-cumulation between the different types of liability (Artcurial)

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 (...)

Clémence Mouly-Guillemaud Sudden break: The French Supreme Civil Court and the Paris Court of Appeal disagree with the special character of tenure termination rules against article L. 442-6, I, 5 of the Fr. Com. code (IDF Management / Gifi...)

80

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 (...)

Clémence Mouly-Guillemaud Sudden break: The French Civil Supreme Court confirms the precarious nature of business relationships despite substantial deel flow (IDF Management / Gifi...)

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 (...)

Clémence Mouly-Guillemaud Sudden break: The French Supreme Civil Court restraints the Paris Court of Appeal’s jurisdiction regarding sudden break of established business relationships appeals (Ciprés assurances / IGA éditions...)

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 (...)

Clémence Mouly-Guillemaud Sudden break: The French Civil Supreme Court accepts a predictable break as a non sudden break of established business relationships but still ignores victim’s reorientig to assess injury (Borie Manoux / Chateau Baret ; SNMR / Baglione)

111

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 (...)

Clémence Mouly-Guillemaud Selective distribution: The Paris Court of Appeal and the French Supreme Civil Court specify fault features enabling to terminate business relationships without notice (Slad / Prodirest)

57

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 (...)

Clémence Mouly-Guillemaud Franchise: The Paris Court of Appeal and the French Court de cassation define the notion of partners in established business relationships (Rotosiam / Carrefour...)

109

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. (...)

Clémence Mouly-Guillemaud Sudden break: The Paris Court of Appeal and the French Supreme Civil Court dismiss the principle prohibiting the accumulation of contractual and extra-contractual liability (CBRE Conseil & Transaction / LCS; Basile / Carrefour)

126

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 (...)

Clémence Mouly-Guillemaud Sudden break: The Paris Court of Appeal and the French Court of cassation redirect jurisprudence under the article L. 442-6, I, 5° Commercial code (RPM / Texto...)

344

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 (...)

Clémence Mouly-Guillemaud Sudden break: The Paris Court of Appeal reminds the importance of details under the article L. 442-6, I, 5° of the French Commercial code (Lisa May / Affiches parisiennes...)

176

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. (...)

Clémence Mouly-Guillemaud Sudden break: The Paris Court of appeal selectively considers trust in order to applicate the article L. 442-6, I, 5° of the Commercial Code (AGSC / SMI ; Cantrel / Collet)

69

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 (...)

Clémence Mouly-Guillemaud Notice: The Paris Court of Appeal renders a judgement on the scope of the article L. 442-6, I, 5° Commercial code (Sourire et Santé / Laboratoire B.C...)

119

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 (...)

Clémence Mouly-Guillemaud Sudden break: The Paris Court of Appeal specifies objective criteria to establish a relationship in application of the article L. 442-6, I, 5° Commercial code (Codegi Industrie / Arkema France...)

171

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 (...)

Clémence Mouly-Guillemaud Damage: The Paris Appeal Court clarifies the modalities of assessment of the compensation due by reason of the sudden termination of an established commercial relationship (Europe Haa / I. & Fils-IFRI...)

106

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 (...)

Clémence Mouly-Guillemaud Sudden termination: The Paris Court of Appeal clarifies the rules applicable in the event of a sudden termination of an established commercial relationship (Beauté Shop / Clarins...)

216

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 (...)

Clémence Mouly-Guillemaud Notice period: The Paris Court of Appeals explains the goal of the notice period imposed by article L. 442-6, I, 5° of the Commercial code (M. / L. Matériel)

89

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 (...)

Clémence Mouly-Guillemaud Appeal: The French Supreme Court reduces the legal uncertainty created by the specialization of some Courts by limiting the scope of inadmissibility of misdirected appeals (Toyota France)

117

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 (...)

Clémence Mouly-Guillemaud Breach of contract: The French Supreme Court departs from previous case law on the question of identification of the fault of sudden termination when the breach of contract is foreseeable but also on the damage claim (Flor de Selva)

118

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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