Under the terms of the fifth paragraph of Article L.442-6 of the Commercial Code, the author is held liable and requires him to repair the damage caused by the fact of "brutally severing, even partially, an established commercial relationship, without written notice taking into account the duration of the commercial relationship and respecting the minimum period of notice determined, with reference to trade usage, by inter-professional agreements ”.
The notice period to be observed in the event of termination of an established commercial relationship is to be determined according to the duration of this relationship.
The duration of a commercial relationship between two legal or natural persons subject to the aforementioned provisions is not necessarily the duration of the contract concluded between them. If initially the Court of Cassation considered that the duration of a commercial relationship could not be determined beyond the relationship existing between the initial parties who had actually maintained this relationship, it seems to be otherwise now. In fact, for several years the Commercial Chamber of the Court of Cassation has, in order to determine the duration of a commercial relationship, considered that, in certain cases, the entire duration of the relationship should be taken into consideration even though several partners commercial ones had succeeded.
This was particularly the case when a French subsidiary of an international group had taken over the commercial relations that a distributor had with the Moroccan subsidiary of the same group. The Court of Cassation, in such a case considered that this resumption of commercial relations, testified to the will of the parties to register in the continuity of the previous relations (cass. com. September 25, 2012, n°11-24.301). Any decision likely to provide clarification as to the assessment of the duration of established commercial relations is therefore important.
In a judgment rendered on September 15 by the commercial chamber of the Court of Cassation ( case. com. September 15, 2015, no. 14-17.964) , the latter ruled on this question .
In this case, a company had transferred its goodwill to another company after giving it lease management for five (5) months.
Until the transfer, the transferor company maintained an established commercial relationship with a transport service provider, which was continued by the transferee company for the duration of the management lease. Fifteen days after the completion of the sale of the business, the transferee company notified the said service provider of its intention not to continue the commercial relationship initially established with the transferor company. The transport service provider sued the transferee company for payment of damages for sudden termination of the commercial relationship established, relying on the fact that to determine the period of notice to be respected, the duration of the commercial relationship from its origin, between the original parties, had to be considered.
The Court of Cassation dismissed the appeal of the transport service provider considering that, on the one hand, the transfer of goodwill does not have the effect of automatically substituting the transferee for the transferor in the contractual and commercial relations that this company maintained with the transport company;
and that, on the other hand, the fact that the transferee company maintained a commercial relationship during the term of the lease-management was not sufficient to demonstrate that this company intended to continue the commercial relationship initially established between the transferor company and the transportation company. The decision of the Court of Cassation appears judicious for two reasons.
The first is that the transfer of a goodwill does not lead to the automatic transfer of the contracts entered into by the transferor. The second lies in the theory of the relative effect of agreements according to which the transferee company cannot be required to continue the relationship entered into by the transferor company unless it has expressly expressed its desire to continue this relationship. It would have been contrary to this rule for the transferee company to suffer the consequences of a commercial relationship maintained by the transferor company.
