University of Montpellier

Stéphane Brena

University of Montpellier
Lecturer

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, from 2012 to 2016, the dean of the Institute of international business law of the University of Paris 1 Pantheon-Sorbonne in Cairo (Egypt), where he still teaches.

Articles

2059 Review

Stéphane Brena Commercial agency: The Versailles Court of Appeal considers that the power of negotiation supposes that of modifying the terms of the contract, that the power of representation is not necessary for the classification of agency contract, that the fixing of the termination indemnity of contract does not presuppose proof of damage and that it is combined with the damages due for the faulty nature of the breach (Natprocess / FCD)

19

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 (...)

Stéphane Brena Commercial agency: The Metz Court of Appeal requires the principal to invoke the serious fault of which he was aware at the time of the breach of the contract (Villars Maître Chocolatier / Y & CO)

29

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 (...)

Stéphane Brena Agency agreement: The Versailles Court of Appeal dismisses the qualification of commercial agency due to the lack of negotiating power but recognizes that the intermediary has a right to information on the amount of commissions due (Sensas / Italia Fishing)

53

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 Versailles (...)

Stéphane Brena Distribution agreement: The French Supreme Civil Court rules that the action for public order nullity due to the lack of counterpart is submitted to the prescription of the article L. 110-4 of the commercial code (Auchan France & Eurauchan / Jean-Marc Valensi & Bethsa B)

74

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 (...)

Stéphane Brena Selective distribution: The Paris Court of Appeal decides that the business sale plan can allow the transfer of a commercial lease and a sign contracts (ITM Entreprises et IEM / Valorme)

59

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 (...)

Stéphane Brena Commercial agency: The Court of Appeal of Rennes excludes from the termination indemnity the amount of commissions which would no longer have been received by the commercial agent (Galliance / Inaudi)

102

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 always (...)

Stéphane Brena Commercial agency: The Court of Appeal of Versailles does not accept to reduce the compensation due to the agent, even in consideration of the brevity of the relationship (G-Tech / AC Agency)

34

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 (...)

Stéphane Brena Integrated distribution: The Rennes Court of Appeal considers that the branch manager is subject to the general old-age insurance scheme but not, as he’s not an employee, to the supplementary one (Total Marketing Services)

57

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 (...)

Stéphane Brena Commercial agency: The Bordeaux Court of Appeal decides that the proof of the commercial agency is free and that the transfer of the contract requires the agreement of the principal (Caves du Château / Vignobles D.)

61

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, (...)

Stéphane Brena Commercial agency: The Chambéry Court of Appeal does not allow the principal to rely, in order to justify a breach for serious misconduct, on the actions of the commercial agent prior to the breach (Early Bird / Faith Connexion)

92

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 (...)

Stéphane Brena Commercial agency: The Versailles Court of appeal rejects the economic violence and admits the validity of the clause of modification of the perimeter of intervention of the agent (SdLease / Econocom-Osiatis)

165

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 (...)

Stéphane Brena Commercial agency: The French Supreme Civil Court rules that the non-renewal of the contract decided by the principal needn’t any reason (Pasteur / Technologies services)

51

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, (...)

Stéphane Brena Commercial agency: The Caen Court of appeal decides the one year deadline laid down in the article L. 134-12 of the commercial code is a time of foreclosure to an agent’s right to dommages (Carpentry of the Manche and Calvados)

72

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 (...)

Stéphane Brena Significant imbalance: The French Commission on the examination of unfair practices considers that the clause of non-renewal of contract indemnity, stipulated to the benefit of the commissioner, can contravene the article L. 442-6, I, 2° of the French Commercial Code (Commission contract)

120

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 equivalent (...)

Stéphane Brena Agency agreement: The Paris Court of Appeal decides that an international contract submitted by the parties to the “international law” is a contract for which the applicable law has not been chosen (Isoplus GMBH)

91

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 (...)

Stéphane Brena Agency agreement: The Lyon Court of appeal recalls the principal must inform his representative of changes in price policy, respect the contractual exclusivity and transmit the documents enabling him to verify the respect of his remuneration rights (CB Forez Loisirs / Financière O2, A.S. Pool, Albiges, Albon)

86

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 (...)

Stéphane Brena Salesman: The French Civil Supreme Court decides the salesman has to be paid although the products delivery failed, due to his employer’s supplier (Loisirs Distributions / Crocs Europe)

67

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 (...)

Stéphane Brena Notice period: The Paris Court of Appeal delivers a ruling on the commercial agent’s right to be given notice and to be compensated in the case of a succession of agency agreements (Olivier C. / Bonne Etoile)

83

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 the (...)

Stéphane Brena Sale: The Courts of Appeals of Paris and Toulouse consider that the status of commercial agent is not dependent of the will of the parties or the denomination in the contract but the effective conditions of exercise of the activity (Edition Atlas / New PLV)

160

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 agent (...)

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