what are the conditions?

Have you ever entered into a commercial contract and wanted to terminate it, or did your partner contractor suddenly decide to terminate all contractual relationships with you? You wonder what it is abusive dissolution in a business relationship and what is condition what is its nature? We mean it to you!

Definition of business relationship

🔎 A commercial contract connects a professional to another professional, a non -professional (defined as a professional who does not act within his or her activity) or a consumer. In any case, there is a commercial contract a commercial thing, means that it refers to the performance of a commercial act (act of sale, provision of services, etc.). Therefore, it includes a significant number of contracts (service provision contract, business provider contract, commercial contract, partnership contract, etc.).

However, the wrong conclusion applies to certain relationships only. Any producer, entrepreneur, industrialist or person registered in the directory of trades, who has decided to abruptly demolished, even partiallya business relationship, engaging his responsibility.

So in what cases, precisely, can we talk about abusive termination?

The criterion for abusive termination

Abusive termination is punishable by the Commercial Code. In fact, an abrupt cessation involves the responsibility of its author (1). Jurisprudence considers it to be characterized by a combination of 2 cumulative criteria.

An established business relationship

A simple act of sale, a new business relationship, the subject of the contract, etc., are all considered. So, to find out if you suffer or become the author of an abusive breakup, here are some signs.

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The Court of Cassation (2)indicates the existence of a business relationship established by :

  • the number of exchanges between the parties to the commercial contract;

  • the duration business relations;

  • Iclose collaboration between the parties and/or the fulfillment of technical investment hope Finance involved in the common project.

Therefore, the relationship is examined as a whole.

The judges considered the 5 orders placed over a period of 6 months to be proof of a commercial relationship. “Punctual and not followed”And not an established business relationship (3). In another judgment, however, they decided “that a series of one-off contracts would be sufficient to identify an established commercial relationship”(4).

Remember, however, that the judge remains sovereign in his or her assessment, if in doubt, contact a professional..

The brutality of the break

If a commercial relationship is established, it must be demonstrated the brutal nature of separation. Many situations can arise.

Failure to respect notice:

18 monthsthe longest notice period

  • the notice is given for the contractual: failure to comply with it may lead to abrupt termination;

  • no notice period is provided in the contract: the law of the case is likely to consider the duration of the relationship in order to reach a reasonable notice. The longer the duration, the higher the notice. So insufficient notice is considered an abrupt termination.

⏳However, the legislator poses a ceiling of 18 months to avoid excess. Consequently, respect for the 18 -month notice period should make it possible not to commit an abusive termination.

Fundamental : The will of rupture is necessary written and clear. Upon its failure, sudden fracture can be identified (5).

Breach of contract:

  • usually a framework contract drafted: it makes it possible to list the main obligations of the parties. If the violation results in non -compliance with obligations to the detriment of the parties, possibly, abusive conduct may qualify;

  • in the absence of a structured contract, it must be shown how the author’s practices describe an abrupt termination.

⚖ Works of art : Jurisprudence was able to consider that the only sudden decrease in orders and turnover of the co-contracting party subject to breach, did not enable the establishment of an abusive breach. In addition, he was able to raise “the absence of a framework agreement including a minimum order commitment” (6).

Partial rupture, an abusive rupture

The break, even partial, involves the responsibility of the author, and cannot escape a penalty. It comes in many forms.

He may:

a reduced essential to the course of the business (7) ;

the renewal from TERMS TARIFF (8) ;

a unilateral change and substantial TERMS in a contract (9) ;

the organizational change in the way of distribution to a supplier (10) ;

the significant reduction orders (11).

The abusive break-up was dismissed

If the Commercial Code provides a penalty if abusive termination occurs, this qualification will be revoked if rest is just because the result of a default from the other party.

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Illustrations:

Thus, a termination can happen without notice and can be non -abusive if it happens while you are in business. not current in its fees. The Court of Cassation considered that it expected a “sin of such gravity” that it will not allow the relationship to continue (12).

Your contract consists of a Exclusive clause (13) where your co-contractor has promised to provide you with its services exclusively. In the event of non -compliance, this breach may lead to termination of the contract.

Simply put, the legislature applies the civil rules to the contractual obligation. Failure to fulfill your obligations may result in the termination of your contract (14).

Protect yourself from an abusive separation?

The commercial relationship involves the meticulous drafting of the contract and the clauses contained therein. In fact, thefreedom of contract keep planning ahead, with your contractual partner, the course of a possible rupture.

Various clauses can be set:

  • a penalty clause anticipate breach of a contractual obligation by providing in advance for payment per day of delay;
  • a termination clause may allow termination of contract if commitments made for non -compliance;
  • an arbitration clause may provide for the appointment of an arbitrator in the event of a dispute;
  • a mandatory first part of mediation obliges the parties to enter into conciliation before a court summons or to appoint an arbitrator.

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