1. Enforceability of the declaration of unseizability prior to the commencement of liquidation proceedings
2. Statement of claims: additional information from a court decision
3. Procedures for service of judgment
4. End of the continuation plan
5. Extinction of the commercial agent's right to commission
6. Nature of the guarantor's annual information obligation
7. Transfer of the jurisdiction clause
8. Non-existence of a non-competition obligation for the limited liability company (SARL) partner
1. Enforceability of the declaration of unseizability prior to the commencement of liquidation proceedings
Com. March 24, 2015 (No. 14-10.175) FS-PB:
The Court of Cassation reiterates here that the debtor can enforce against its liquidator the declaration of unseizability it made before being placed in judicial liquidation.
Consequently, the supervising judge could not consider that the declaration of unseizability was only enforceable against creditors whose rights arose after the publication of this declaration and in connection with the declarant's professional activity, and authorize the liquidator to proceed with the sale of a property whose unseizability was enforceable against him.
2. Statement of Claims: Supplementary information from a court decision
. Com. March 24, 2015 (No. 14-10.954) F-PB:
A company underwent a tax audit. Following this audit, an assessment was issued for the recovery of corporate income tax due for the years 1993 to 1995. By judgment of April 16, 2002, the administrative court dismissed the company's application for relief or reduction of this tax. A judgment dated July 11, 2002, initiated the company's receivership proceedings. On September 16, 2002, the public accountant filed his claim, based on the aforementioned enforceable instrument. On October 8, 2003, the supervising judge noted that proceedings were pending due to the company's appeal against the administrative court's decision. The administrative court of appeal upheld this decision in a final ruling dated July 7, 2005, which was recorded on the statement of claims, a fact contested by the company.
The Court of Cassation upheld the appellate court's decision, supplementing the statement of claims with a reference to the judgment, insofar as the court of appeal was not required to conduct any further verification beyond confirming the finality of the administrative court of appeal's decision in order to include it.
3. Procedures for Serving Judgments
. March 10, 2015 (No. 13-22.777) F-PB:
In this case, a company had been placed under receivership and then into liquidation. The supervising judge had granted a creditor's (the seller's) claim for the price of equipment and had authorized this creditor to recover the price from the sub-purchaser.
The creditor then sued the sub-purchaser, and his action was declared admissible.
The sub-purchaser objected to the judgment declaring the action admissible, arguing that the supervising judge's orders had not been served on him by the court clerk.
The Court of Cassation dismissed the appeal on the grounds that, pursuant to Article 651, paragraph 3 of the Code of Civil Procedure, service of a judgment by way of service at the initiative of a party is authorized, even though the law provides for service in the ordinary form by the court clerk.
4. End of the continuation plan
. April 8, 2015 (No. 13-28.061) F-PBI:
Following the expiration of a reorganization plan and due to non-payment during its term, a creditor who had filed a claim after the plan's adoption summoned the debtor before the summary proceedings judge for payment of a provisional sum.
The debtor was ordered to pay a provisional sum and subsequently challenged the decision, arguing that there was a serious dispute regarding the creditor's standing to sue.
The Court of Cassation dismissed the appeal. According to the Court, when a continuation plan has reached its term without a termination decision, the creditor regains its right to pursue individual legal action against the debtor.
5. Extinction of the commercial agent's right to commission
. March 31, 2015 (No. 14-10.346) FS-PB:
The termination of a commercial agency contract having been declared wrongful, the agent sued the principal for damages and payment of outstanding commissions. The principal was ordered to pay a certain amount of commissions and contested this decision, invoking the principle of freedom of proof.
According to the Court of Cassation, the right to commission can only be extinguished if it is established that the contract between the third party and the principal will not be performed and if the non-performance is not due to circumstances attributable to the principal. In this case, the only entries concerning the reasons for the reductions or credits, having been made by the principal, are insufficient, in the absence of other evidence, to demonstrate that they actually correspond to the various agreed-upon situations in which they may be applied, nor, as such, to justify a subsequent reduction in the amount of commissions remaining due to the agent. Consequently, the Court considers that the principal has not provided the required proof of the extinction of its obligation to pay the commissions corresponding to the contracts entered into and dismisses the appeal.
6. Nature of the annual obligation to inform the guarantor
. Com. 8 April 2015 (No. 13-14.447) FS-PBI:
A credit institution, the creditor, challenged the appellate court's judgment declaring null and void the guarantee it intended to rely on to obtain payment of its debt. The court had indeed held that, at the time the guarantor invoked the nullity of their commitment, the guarantee agreement had not yet been performed by the mere provision of the legally required annual information, and therefore the plea of nullity was admissible. According
to the appeal, since the annual information provided by the creditor to the guarantor constituted an act of performance of the guarantee, the plea of nullity could not be raised to defeat the demand for performance of this legal act.
The Court of Cassation upheld the appeal court's decision on the grounds that the various obligations imposed on the professional creditor are merely legal obligations sanctioned by the forfeiture of the right to ancillary rights to the debt, and not the consideration for the guarantor's obligation.
7. Transfer of the jurisdiction clause
1st Civil Chamber. March 25, 2015 (No. 13-24.796) F-PB:
In a dispute between a sub-purchaser and a manufacturer-supplier established in the United Kingdom, the latter raised an objection to the jurisdiction of the French courts, relying on the jurisdiction clause in the initial contract, which conferred jurisdiction on the English courts.
The Court of Appeal declined jurisdiction. According to the court, the manufacturer-supplier had accepted the sub-purchaser's delegation of authority from the purchaser. Therefore, in the absence of an express agreement to the contrary by the parties, the jurisdiction clause stipulated in the original contract should apply to the relationship between the manufacturer-supplier and the sub-purchaser.
The Court of Cassation notes that, according to the case law of the Court of Justice of the European Union (CJEU, 7 February 2013, Refcomp , C-543/10), a jurisdiction clause agreed upon in a contract between the manufacturer-supplier of goods and the purchaser thereof cannot be invoked against a subsequent purchaser who, following a series of contracts transferring ownership concluded between parties established in different Member States, has acquired those goods and wishes to bring an action against the manufacturer-supplier for reimbursement of the sums paid as payment for the goods, unless it is established that this third party gave their effective consent to this clause under the conditions of the aforementioned provision. Consequently, the Court quashes the appeal judgment.
8. Non-existence of a non-competition obligation on the part of the partner of SARL
Com. March 3, 2015 (No. 13-25.237) FD:
In this case, the co-founder and manager of a limited liability company (SARL) left his position in 2009 to pursue a competing business in another company he had founded. In 2011, after obtaining authorization from the shareholders' meeting, he sold his shares and undertook not to solicit certain clients of the company. Believing he had engaged in unfair competition immediately upon leaving his position, a shareholder of the first company sued him for damages. The Court of Appeal found him liable for damages, and the co-founder appealed the judgment to the Court of Cassation.
The Court of Cassation overturned the judgment. According to the Court, unless otherwise stipulated, a partner in a limited liability company is not, in that capacity, required to refrain from engaging in an activity that competes with that of the company and must only refrain from acts of unfair competition.
