Summary
1. Failure to execute a transaction
2. Failure to declare a claim
3. Disputing a claim
4. Unfair competition: harm to the partner of a company in liquidation
5. Confidentiality obligation of the ad hoc agent
6. Obligation to appoint an ad hoc agent
7. Commercial lease
8. Guarantee: Conciliation clause
9. Disproportion of the guarantee
10. Termination of commercial relations
11. Jurisdiction clause
12. Obligation to social debts of the civil partnership partner
1. Failure to execute a transaction
1st Civil . September 10, 2015 (n°14-20.917) F-PB:
A debtor and his creditor entered into a settlement agreement reducing the amount of the claim and providing for two payment terms.
Before the date of the first payment due date agreed to in the transaction, the debtor was placed in receivership and then in judicial liquidation. The creditor then made a declaration of claim for its initial amount and then assigned the liquidator to fix it. The Court of Appeal having declared this claim inadmissible, the creditor appealed to the Court of Cassation.
The Court notes that pursuant to Article L.622-13 I of the Commercial Code, the failure to perform the transaction by the company could not be invoked by the creditor to defeat the authority of the thing judged who was attached to it. Consequently, the Court dismisses the appeal lodged against the appeal judgment.
2. Failure to declare claim
Com. September 8, 2015 (n°14-15.831) F-PB:
A debtor was placed in receivership on March 10, 2009 and a receivership plan was drawn up on March 9, 2010. Pursuant to an interim order of September 17, 2009 ordering the debtor to pay one of his creditors a provision , on April 21, 2011, he had a seizure-attribution carried out by the notary.
On the following July 12, the court pronounced the resolution of the recovery plan and opened a judicial liquidation procedure. The creditor then sued the garnishee, namely the notary, for payment of damages for inaccurate declaration on the basis of article R. 211-5 al. 2 of the Code of Civil Enforcement Procedures. The garnishee objected to the appeal decision for having ordered him to pay damages.
In this regard, he argued that only claims arising after the opening of insolvency proceedings for the purposes of the conduct of the proceedings or the observation period or in return for a service provided to the debtor during this period are not subject to the obligation to declare to the legal representative and to the prohibition of payments and enforcement. The Court of Cassation quashed the appeal judgment on the grounds that the debt which was not declared in the liabilities of the debtor is not extinguished but unenforceable against the collective proceedings so that the failure to declare the debt, in recovery of which the creditor had an attachment carried out before the opening judgment of his debtor, does not deprive this creditor of his interest in acting against the garnishee on the basis of article R. 211-5 paragraph 2 of the code of civil enforcement procedures.
3. Dispute of claim
Com. September 29, 2015 (n° 14-13.257) F-PB:
During the contestation by a debtor in safeguard, relating to the admission of a claim by the judge-commissioner, the judicial representative was not a respondent, unlike the creditor.
Taking this defect into account, the Court of Appeal declared the claim inadmissible. The Court of Cassation dismissed the appeal lodged against the decision of the Court of Appeal. According to the Court, under the terms of Article 553 of the Code of Civil Procedure, in the event of indivisibility with regard to several parties, the appeal brought against one is admissible only if all are called upon to instance. This link of indivisibility exists, in matters of verification of liabilities, between the creditor, the debtor and the legal representative. Consequently, when the appeal against a decision of admission of the judge-commissioner is lodged by the debtor alone, it is up to him to intimate, not only the creditor, but also the judicial representative, without being able to dispense with it by invoking an alleged community of interests which would unite it to the latter.
4. Unfair competition: harm to the partner of a company in liquidation
Com. September 29, 2015 (n°13-27.587) F-PB:
A company and its majority partner, considering themselves victims of an act of unfair competition committed by the company created by two former employees, including a former co-manager, sued the latter in order to obtain payment of damages before be placed in compulsory liquidation.
The Court of Appeal condemned the company created by the former employees to compensate the liquidator and the majority shareholder.
Indeed, the Court of Appeal considered that the partner justified personal damage resulting from the loss of the share capital that he contributed, as well as the income that he drew from the company in his capacity as manager. The Court of Cassation breaks on this last point. According to the Court, the Court of Appeal did not give a legal basis to its decision insofar as it did not distinguish between the loss of the partner's contributions, which is only a fraction of the collective damage suffered by all the creditors, and the loss for the future of the remuneration that he could have received as a corporate officer, at the origin of a distinct damage which was personal to him.
5. Confidentiality obligation of the ad hoc agent
Com. September 22, 2015 (n°14-17.377) F-PB:
The judgment sheds light on two points.
First of all, the Court specifies the extent of the obligation of confidentiality of the ad hoc representative. Secondly, the Court recalls that the creditor calling to negotiate within the framework of the ad hoc procedure is not bound to accept the agent's proposals. In the present case, the surety assigned by the creditor of a company in liquidation challenges before the Court of Cassation the rejection of the proceedings of a certificate drawn up by the ad hoc agent whose mission was to negotiate payment terms with the creditors.
In this respect, the plaintiff argued on the one hand, that the obligation of confidentiality to which the agent is bound can be waived at the request of the beneficiary company or the guarantor without the creditor being able to oppose it . The Court of Cassation dismissed the appeal and considered that the Court of Appeal was right to exclude from the proceedings the certificate given to the surety of the debtor company by the latter's ad hoc agent, in which, disregarding the obligation of confidentiality which bound him by application of article L. 611-15 of the commercial code, he stigmatized the attitude of the bank during the negotiations. The Court of Cassation then responds to the plea presented by the plaintiff, according to which he claimed that the creditor is bound towards the surety by a duty of loyalty which requires the Court of Appeal to verify whether the behavior of the creditor had not not degenerate into abuse of the right to refuse the agent's proposal.
6. Obligation to appoint an ad hoc agent
Com. October 13, 2015 (n°14-14.327) F-PB:
A bank sued a SNC, its associates and sureties as well as a SARL for payment of various sums.
A receivership procedure for the two companies and the partners has been opened. After declaration of the debts, the companies and the partners challenged these debts and counterclaimed damages from the bank due to the invoicing of abusive financial charges and abusive breach of credits. This request was taken up by the creditors' representative. On September 18, 1998, the court approved the plan for the continuation of the companies and partners, and appointed the representative of the creditors as commissioner for the execution of the plans, who took over the claim for damages in that capacity. The plans were executed in 2004 and a judgment of March 22, 2013 once again placed one of the companies in receivership and the commissioner for the execution of the plan was appointed as legal representative. By conclusions of October 16, 2013, the two companies, the partners and the agent, acting in his capacity as commissioner for the execution of the plans and representative of the creditors, resumed the claim for damages not yet judged and requested, in besides, at the bank, the payment of a sum representing the amount of a commercial paper. The SNC and one of the partners criticizes the appeal judgment for having declared the request inadmissible. The Court of Cassation confirms the decision of the Court of Appeal. Indeed, under the terms of articles L. 621-68 old (L. 626-25 current) of the commercial code and 90 of the decree of December 27, 1985 that the proceedings to which the representative of the creditors was a party and which were taken over by the Commissioner for the execution of the plan must, when the latter is no longer in office, be prosecuted by a legal representative specially appointed for this purpose, including when the debtors were themselves parties to the proceedings.
7. Commercial lease
3rd Civil . October 8, 2015 (n°14-18.881) FS-PB:
The owner of a commercial premises leased for renewal as of January 1, 1998 , summoned the tenant in recognition of the acquisition of the resolutory clause, subsidiarily in termination of the lease and more subsidiarily in validation of a notice to effective October 1, 2010, refusing the renewal and payment of an eviction indemnity.
The judicial termination of the commercial lease was pronounced on April 18, 2012 and the agent-liquidator of the tenant company challenged, by appeal conclusions of January 23, 2013, the validity of the notice and requested the payment of an eviction indemnity .
To accommodate these requests, the appeal decision held that the action challenging the leave was interrupted and not suspended on September 19, 2012, until the resumption of proceedings on December 20, 2012, in application of the article 370 of the code of civil procedure.
According to the court, a two-year period began to run again on December 20, 2012, so that on the date of the challenge by the agent, being January 23, 2013, neither the action challenging the leave was prescribed, nor the request for payment of compensation for the same reasons. The Court of Cassation quashed the appeal judgment because by ruling in this way, while the judicial reorganization judgment only has an interrupting effect on proceedings already initiated and the time limit within which the action challenging the validity of a leave without offer of renewal or eviction indemnity can be exercised by the tenant, is not suspended by his placement in receivership or judicial liquidation, the Court of Appeal violated article 370 of the code of civil procedure and article L. 145-60 of the commercial code.
8. Guarantee: Conciliation clause
Com. October 13, 2015 (n°14-19.734) FS-PBI:
Summoned to pay the balance, the guarantor opposed the inadmissibility of the request for non-compliance with the prior conciliation procedure provided for in the loan contract.
The Court of Appeal accepted this request insofar as the obligation to implement a preliminary conciliation procedure is analyzed as an exception inherent in the debt in that this forecast is irrelevant to the person of the subscriber and does not relates only to the obligation to subscribe, of which it defines the terms governing its admission and its implementation.
The Court of Cassation overturns the appeal judgment. According to the Court, the plea of inadmissibility based on the failure to implement a contractual clause which establishes a conciliation procedure, compulsory and prior to referral to the judge, does not concern, when such a clause appears in a contract of the loan, only the methods of exercise of the action of the creditor against the principal debtor and not the repayment debt itself for which the guarantor is also bound, so that it does not constitute an exception inherent in the debt that the surety may oppose.
9. Disproportionate deposit
Com. September 22, 2015 (n°14-22.913) FP-PB:
The joint surety for loans granted to two companies of which she was a manager was assigned in execution of her commitments after the said companies were put into liquidation.
The guarantor then invoked the disproportion of his commitments with regard to his income and assets. The Court of Appeal considered that the indebtedness did not appear to be manifestly disproportionate to his income and assets given the expected success of the commercial operation financed.
This judgment was quashed by the Court of Cassation. In this judgment, the Court specifies that the proportionality of the commitment cannot be assessed with regard to the expected income from the guaranteed transaction.
10. Termination of commercial relations
- Com. September 15, 2015 (n°14-17.964) FS-PB:
A company operating a beverage trading business leased it out before selling this fund to the manager on March 30, 2006. The transferee then informed, on April 14, 2006, the company which had been providing the transport fund beverage supply, its decision to use its own means of transport.
This decision became effective the following August. Relying on the relationship it had maintained with the transferor, the transport company sued the transferee for the payment of damages for the sudden termination of an established commercial relationship. The Court of Cassation confirms the appeal judgment rejecting the request. Indeed, if the transfer of the goodwill transferred the ownership of the elements of the transferred fund, it did not automatically substitute the transferee for the transferor in the contractual and commercial relations that the transferor had with the plaintiff company. The Court of Appeal had also held that if the transferee had appealed to the plaintiff during the time of the management lease, then after the acquisition of the property, these elements alone do not allow it to be considered that this company intended to continue the commercial relationship initially established between the assignor and the applicant. Consequently, the notice period did not have to be determined in consideration of this relationship.
- Com. October 6, 2015 (n°14-19.499) FS-PB:
Two companies belonging to the same group established relations with the same company in June 2004 for one and in September of the same year for the other.
These same two companies then terminated their commercial relations under identical conditions, namely, without notice and for similar reasons, during the same year. The supplier then sued them for damages on the basis of Article L.442-6 I 5° of the Commercial Code. The Court of Appeal considered that the supplier should have benefited from one year's notice from the companies.
The court articulated its reasoning around two elements. On the one hand, it held that the consequences of these ruptures for the supplier were necessarily amplified insofar as they were cumulative. To assess the duration of the notice, it was therefore necessary to take into account the overall turnover generated by the companies, insofar as they maintained a commercial relationship with the supplier, over the same period and on identical products, with similar requirements in quantitative terms. The court further states that this turnover having increased significantly during 2007 and 2008 to reach 10.20% in 2007 and 9.75% in 2008, the result is that in terms of reorganization , the supplier had, during the same period, to make up for the loss of two customers with whom it had a substantial turnover. The Court of Cassation quashed the appeal judgment insofar as the companies, although belonging to the same group and having the same activity, were independent companies, which had maintained separate relations with the supplier and had not not act in concert.
11. Jurisdiction clause
1st Civil . October 7, 2015 (No. 14-16.898) FS-PBI:
A French company was recognized as an authorized retailer for the products of a brand marketed by an Irish company by contract concluded on October 10, 2002 containing a clause conferring jurisdiction in favor of the Irish courts.
Invoking anti-competitive practices and acts of unfair competition allegedly committed from 2009 by its co-contracting party, the French company sued it for damages before a French commercial court. The contracting party then raised an objection of lack of jurisdiction in favor of the Irish courts, which was upheld by the Court of Appeal. The legal representative of the French company argued before the Court of Cassation that the choice of forum clause requiring the French company to seize the Irish courts, while the Irish company had the option of seizing another jurisdiction, was of a potestative nature.
The Court of Cassation noted that the choice of forum clause required the French company to act before the Irish courts, while its co-contracting party had the option of seizing another court. The clause making it possible to identify the jurisdictions that may have to take up a dispute between the parties on the occasion of the performance or interpretation of the contract, this one met the requirement of foreseeability which must be satisfied choice of court clauses. Consequently, the Court dismisses the appeal brought against this decision.
12. Obligation to social debts of the civil partnership partner
Com. October 13, 2015 (n°11-20.746) F-PB:
The civil real estate company (SCI), created by the plaintiff with a co-partner with a view to carrying out real estate transactions, took out, in December 1989, a loan of 620,400 francs (94,579.37 euros).
Since the SCI ceased, from November 1991, to regularly pay the installments of this loan, the lender notified it of the forfeiture of the term on June 27, 1997 and then had it issue an order for the purposes of foreclosure. This procedure was finally canceled on March 17, 1999. Finally, the SCI having been placed in judicial liquidation on February 9, 2006, the lender declared its debt and then assigned the plaintiff for payment, in its capacity as a partner of the SCI. On the one hand, the Court of Appeal rejected the plea of inadmissibility based on the prescription of the lender's action invoked by the partner, condemned the partner to pay the lender a certain amount as a partner and refused to engage the responsibility of the lender.
The Court of Cassation confirms the decision of the trial judges. To this end, it first holds that the debt of the lender had been irrevocably admitted on June 28, 2010 to the liabilities of the judicial liquidation of the SCI. The debt was thus definitively consecrated in its existence and its amount vis-à-vis the partners, without the latter, bound vis-à-vis third parties indefinitely for social debts in proportion to their share in the social capital, being able to avail themselves of the possible prescription of the claim. The Court then specifies that the damage suffered by the partner, which results, not from a tortious fault on the part of the lender, but directly from the failure of the SCI to repay the loan and its correlative obligation to bear the social losses in its as a partner, does not present the personal nature of such a nature as to justify on its part an action for liability against the lender.
