Cas. Com., 10 Feb. 2021, n°19-15369
The Court of Cassation, in a judgment delivered on February 10, 2021, considered that in matters of sudden termination of an established commercial relationship, the only circumstance that a third party, having taken over the activity or part of the activity of a person, continues a commercial relationship that the latter had previously maintained is not sufficient to establish that it is the same commercial relationship that continued with the partner concerned, unless there are additional elements demonstrating that such was the common intention of the parties.
As part of this procedure, in a contract dated November 30, 2011, the ordering company entrusted the transport of its goods to a transport company.
The contracting company having been placed in receivership, a judgment of September 28, 2012 approved a plan to transfer all of its assets to a company with the option for the latter to replace its subsidiary, the transferee company for part of them.
On November 16, 2012, an agreement was reached between the transferee company and the transport company on the tariffs that may be applied by the latter for the period after November 1 , 2012.
The negotiations between the parties on the subsequent change in these prices having failed, the transferee company, by letter dated August 1 , 2014, put an end to relations between the two companies for the so-called "distribution" activities with effect September 5, 2014 and, by an email dated October 24 of the same year, to those relating both to so-called "touring" activities, with effect the following week, and to so-called "exclusive rentals" activities, with effect from December 1, 2014 .
Believing itself to be the victim of a sudden break in established commercial relations, the transport company sued the transferee company for compensation for its damage.
According to this judgment, the Court considers that in matters of sudden termination of an established commercial relationship, the only circumstance that a third party, having taken over the activity or part of the activity of a person, continues a relationship commercial relationship that it had previously maintained is not sufficient to establish that it is the same commercial relationship that continued with the partner concerned, unless there are additional elements demonstrating that such was the common intention of the parties.
It is in this context that the Court, after noting that the contracting company's disposal plan did not provide for that of the goodwill, only a few elements of this fund having been transferred, that the transport contract does not did not fall within those taken over by the transferee company and that, on November 16, 2012, an agreement had been reached on the tariffs of the transport company for the period after November 1 , 2012. The Court of Appeal was able to hold that the company transferee had not continued the relationship initially established with the transport company even if it was identical. (Cass. Com., Feb. 10, 2021, n°19-15369)
