Newsletter n° 15 – Business law
REGULATIONS
Reform of the law of obligations
Draft ordinance
JURISPRUDENCE
… of December 2, 2014
Insolvency proceedings of the lessee and payment of debts of the lessor
… of January 27, 2015
Annulment of court-ordered liquidation and interrupting effect of the declaration of debt
… of January 27, 2015 Erroneous statement in the notice of judgment published in BODACC
… of January 15, 2015 Perpetual nature of the exception of nullity
… of January 27, 2015 Set-off of debts
… of February 3, 2015 Assignment of company rights
… of February 3, 2015 Interference of a parent company in its subsidiary
… of February 4, 2015 Door-to-door canvassing
… of January 15, 2015 Plurality of commitments and assessment of the disproportion of guarantees
REGULATIONS
Reform of the law of obligations
Article 8 of Law No. 2015-177 of February 16, 2015 on the modernization and simplification of law and procedures in the areas of justice and home affairs, declared constitutional by the Constitutional Council on February 12 (No. 2015-710 DC of February 12, 2015) authorized the government to take by ordinance the measures falling within the scope of the law necessary to modify the provisions of the Civil Code relating to obligations.
On February 25, 2015, the Ministry of Justice published a draft order on its website and launched a public consultation, open until April 30, 2015. The order should be presented a few weeks after the close of consultation.
The project put online on February 25 brings modifications of very variable importance.
While certain provisions tend to incorporate jurisprudential solutions into the Civil Code, others differ. Provisions preliminary to the conclusion of the contract and rules of formation of the contract
Among the provisions provided for, the following should be highlighted:
- The project defines or redefines the different types of contracts. In particular, it introduces a definition of the framework contract and the adhesion contract;
- The requirement of good faith is extended to the formation of the contract;
- The project specifies the terms of withdrawal and acceptance of the offer;
- Pact of preference: the sanction of violation of the pact of preference provided for by case law is modified and integrated into the code.
Contract validity
The draft enshrines a general duty of information and the penalties applicable in the event of a breach of this duty.
Among the essential modifications, it should be noted, the disappearance of the cause from the conditions of validity of the contract.
However, the concept is not completely erased from contract law. On the contrary, the draft ordinance takes up existing solutions, in particular case law, and groups them with the rules applicable to the object. Penalties
The project creates a general regime of nullity and lapse.
Effects of the contract
The project consecrates the theory of unpredictability.
The regime of the stipulation for others is detailed by the project.
JURISPRUDENCE
Collective procedure of the lessee and payment of debts of the lessor
Com. December 2, 2014 (No. 13-11.059) FS-PB:
Before being placed in receivership, on June 11, 2009, the lessee of premises used as a school gave notice to its lessor for July 31 of the same year.
As the premises were finally vacated on November 1, 2009, the lessor sued the lessee for compensation, in particular for the damage suffered as a result of the impossibility of re-renting the premises before the start of the following school year and for payment of the cost of the renovation work. repair. The Court of Appeal having declared the claims inadmissible, the lessor appealed in cassation, claiming in particular the application of the terms of payment of claims arising after the opening of the collective procedure.
The Court of Cassation dismissed the appeal. In support of its decision, the Court held on the one hand that the lessor's claim relating to the restoration work is not consideration for a service provided to the debtor during the observation period, within the meaning of provisions of Article L. 622-17 of the Commercial Code, only if the damage for which he is accused was committed during this period and not, as the plea argues, because the premises would have been returned after the judgment of initiation of the receivership proceedings. The Court also specified that the lessor had, from June 11 to November 1, 2009, been paid, in return for the service provided to the debtor during this period, the rent due and then an occupancy allowance after the termination of the lease set for July 31, 2009, as a result, the Court of Appeal inferred from this exactly that the damages requested to compensate it for the loss resulting from the loss of the chance to be able to immediately re-let the premises had not for consideration a service provided to the debtor.
Cancellation of court-ordered liquidation and interruptive effect of the declaration of claim
Com. January 27, 2015 (n° 13-20.463) FS-PB:
A debtor, in compulsory liquidation, invoked the prescription of a debt corresponding to a loan granted with a maturity date of June 30, 1989, declared during a liquidation procedure which was subsequently annulled, then admitted again on March 30, 2011 during a second liquidation procedure.
The Court of Cassation rejected the plea based on the prescription of the claim on the grounds "that the decision which annuls the opening of a judicial liquidation does not deprive the declaration of claim of its interrupting effect of prescription, which extends until to this decision.
Erroneous statement in the notice of judgment published in BODACC
Com. January 27, 2015 (n° 13-24.619) FS-PB:
According to the Commercial Chamber of the Court of Cassation, if it does not follow from the texts that the notice of the judgment opening the receivership proceedings inserted in the BODACC must mention the date of cessation of payments that this judgment sets, the The indication of this date, when it appears in the insertion, must be exact. Consequently, the notice which in this case included an error on the date of cessation of payments, which made it irrelevant, the exercise at that time of the third party opposition by the creditor to criticize the date of cessation of payments , had not been able to cause the time limit for this appeal to run.
Debt offsetting
Com. January 27, 2015 (n° 13-18.656) F-PB:
To reject a request for compensation, the judgment of the Court of Appeal states that there can be no compensation when the debtor's claim finds its cause in the abusive execution of the contract by his creditor.
Such was the case in this case, the judgment, which has become final on this point, having specifically held that the fault which engaged the liability of the creditor resulted in part from the invoicing of royalties at an excessive rate, without any adequacy to the nature and the importance of the services provided. The Court of Cassation overturned the judgment on the grounds that by so ruling, while a debt resulting from over-invoicing, arising from defective performance of the contract, is connected with a debt arising from the same contract, the court of he appeal violated 1134 and 1147 of the Civil Code and L. 621-24 of the Commercial Code, in its wording prior to the law of July 26, 2005 on safeguarding companies.
Perpetual nature of the exception of nullity
1st Civil. January 15, 2015 (n° 13-25.512) F-PB:
The Court of Cassation recalls here that the exception of nullity can only be invoked to defeat the request for execution of a legal act which has not yet been executed.
Assignment of social rights
Com. February 3, 2015 (n° 13-12.483) F-PB:
In this case, the Court of Appeal refused to grant the request for nullity of an assignment of social rights for fraud because of the existence of a guarantee of assets.
The Court of Cassation quashed the judgment. Indeed, according to the Court, the contractual guarantees relating to the consistency of the company's assets or liabilities, are in addition to the legal provisions and do not deprive the purchaser of company rights, who maintains that his consent has been vitiated, from the right to request the annulment of the act on the basis of these provisions. Consequently, the rejection of the application could not be justified by the sole finding of the existence of a guarantee of assets.
Interference of a parent company in its subsidiary
Com. February 3, 2015 (n° 13-24.895) F-PB:
In the absence of payment by a co-contracting party, a company sued a holding company of the same group for payment.
The Court of Appeal granted this request and condemned the holding company to pay a certain sum. The holding company challenged this conviction before the Court of Cassation. In support of its appeal, the holding company relied on the principle of the autonomy of the legal person under which a company cannot be held liable for the debts of another company in the same group. The Court of Cassation dismissed the appeal on the grounds that several elements had been such as to create an appearance capable of making the creditor believe that the holding company was replacing its subsidiary. Indeed, the Court of Appeal had, on the one hand, held that the holding company, which held the majority of the co-contracting party's capital, had an electronic address similar to that of the debtor, the same domicile and the same manager as the latter. The holding company, on the other hand, had intervened at the pre-litigation stage, on several occasions, to discuss the amount of the obligation, in particular by proposing a lower amount taken from discounts granted on the occasion of previous orders, and to try to obtain a amicable settlement.
door-to-door canvassing
1st Civil. February 4, 2015 (n° 14-11.002) F-PB:
In this case, the plaintiff had received a letter at his home encouraging him, through gifts, to have a new vehicle delivered.
Following this correspondence, he went to the company's premises to conclude a rental contract for a new vehicle with an option to buy. Invoking irregular canvassing, he sued the seller for cancellation of the contract. The Court of Cassation overturned the judgment of the Court of Appeal which considered that the rental contract with option to purchase was concluded in a place intended for marketing, which did not allow the plaintiff to benefit from the protection granted to the conclusion of a contract resulting from door-to-door selling.
Plurality of commitment and assessment of the disproportion of guarantees
1st Civil. January 15, 2015 (n° 13-23.489) F-PB:
To rule out the manifest disproportion of the guarantor's commitments, the judgment of the Court of Appeal held that the latter's indebtedness consists of mortgages. The Court of Cassation overturned the judgment on the grounds that the disproportion must be assessed with regard to the overall indebtedness of the surety, including that resulting from surety commitments.
