Cass. Com., 10 Feb. 2021, No. 19-15369
The Court of Cassation, in a judgment delivered on February 10, 2021, considered that in matters of abrupt termination of an established commercial relationship, the mere fact that a third party, having taken over the activity or part of the activity of a person, continues a commercial relationship that the latter previously maintained is not sufficient to establish that it is the same commercial relationship that has continued with the partner concerned, unless there are additional elements demonstrating that this was the common intention of the parties.
As part of this procedure, by a contract dated November 30, 2011, the client company entrusted the transport of its goods to a transport company.
The company giving the orders having been placed in receivership, a judgment of September 28, 2012 established a plan for the sale of all of its assets to a company with the option for the latter to substitute its subsidiary, the acquiring company, for part of them.
On November 16, 2012, an agreement was reached between the acquiring company and the transport company on the rates that could be applied by the latter for the period after November 1, 2012 .
As negotiations between the parties on the further development of these tariffs failed, the acquiring company, by a letter dated August 1, 2014 , terminated the relationship between the two companies for the so-called "distribution" activities with effect from September 5, 2014, and, by an email dated October 24 of the same year, terminated those relating to both the so-called "touring" activities, with effect from the following week, and the so-called "exclusive rental" activities, with effect from December 1, 2014.
Believing itself to be the victim of a sudden termination of established business relations, the transport company sued the acquiring company for compensation for its damages.
In this ruling, the Court considers that in matters of abrupt termination of an established business relationship, the mere fact that a third party, having taken over the activity or part of the activity of a person, continues a business relationship that the latter previously maintained is not sufficient to establish that it is the same business relationship that has continued with the partner concerned, unless there are additional elements demonstrating that this was the common intention of the parties.
It is in this context that the Court, having noted that the sale plan of the contracting company did not include the sale of the business assets, only certain elements of which were transferred, that the transport contract was not among those taken over by the acquiring company, and that, on November 16, 2012, an agreement had been reached on the transport company's rates for the period after November 1, 2012 , was able to conclude that the acquiring company had not continued the relationship initially established with the transport company, even though it was identical. (Cass. Com., Feb. 10, 2021, No. 19-15369)
