LexInter | November 20, 2006 | 0 Comments


Are men born and remain free and equal in contract law?

To this question, the classics essentially answer in the affirmative. They hold that the formation of the contract is free and its binding force implacable. It is the School of the Autonomy of the Will, which governs almost all of the positive law of contracts.

But a doctrine known as “contractual solidarism” takes an opposite view. For her, freedom postulates the equality of the parties, but they are very often de facto unequal. The contract is therefore not freely formed and its binding force must be relaxed for the benefit of the weakest. Understood as the union of co-contractors with a view to achieving a common goal, contractual solidarity implies a certain altruism on the part of one, who must take into consideration, or even take charge of, the interests of the other, granting him or her some sacrifices. (1) Each of these two Schools starts from postulates, essentially unverifiable and diametrically opposed, which are linked to a certain vision of man in society.

For the autonomists, men in the state of nature are free. But, reasonable and social, they constitute society by their freely given agreement. On their own, they discover natural law, namely what their reason shows them to be suitable for their social condition. Among the natural dogmas of life in society are the two strong ideas of individualist liberalism: that of the primordial freedom of man and that gathered in the maxim Pacta sunt servanda . It is the School of natural law and people, illustrated by Grotius and his disciple Pufendorf, by Locke and much later popularized by Rousseau. The Civil Code has largely taken up this philosophy.

On the other hand, the Solidarist School was built. No, men are not born free and equal! They are born into an already established society and are immediately caught up in a network of constraining social relations. The isolated and independent man is pure fiction. Man is by nature a social being. (2) He is born a “  debtor of human association  ”. (3)Its natural state is not freedom, it is interdependence and social solidarity: it enjoys the advantages of a pre-established society, it owes its members a debt of solidarity. This School appeared at the end of the XIXth century on the criticism of the autonomy of the will. Solidarism, illustrated by Léon Bourgeois, a notable radical, was the official ideology of the Third Republic. The term, scientific in appearance as it was at the time, was preferred to “charity” (religiously connoted) or to “fraternity” (sentimental and dated).

Each of these doctrines develops its deductions as to what contract law should be (I). (4) We will then verify the positivity of solidarity before the Court of Cassation (II).

I – Solidarism versus autonomism

Solidarism criticizes contractual autonomism (A). But it is open to refutation on the part of the latter (B).

A – The solidarist critique of contractual autonomy

Is it necessary to recall that, for the Autonomist School, the co-contracting parties are the sole judges of the advisability and content of the contract? That the founding dogma of the primordial freedom of the individual, inseparable from the notion of the social contract, is the very heart of economic liberalism? That the contract can only be fair because, being the fruit of free negotiations between equals, it is necessarily the point of balance between their antagonistic interests? That it gives rise to subjective rights, prerogatives ensuring to each a naturally selfish satisfaction? That only the binding force of conventions can guarantee legal certainty? That neither the legislator nor the judge should intervene in the contract, except to ensure the effectiveness of its stipulations?

1 ° – The critique of autonomy

To this, solidarism objects that free will and equality are myths, even deceptions when the parties are unequal in strength. Beneath an apparent neutrality, classical contract law actually serves economic liberalism and accommodates its procession of harshness. Autonomism gives the image, delicious for itself, of the fox strolling in the henhouse, in complete contractual freedom. However, since the end of the 19th century, we have noticed that many contracts between the powerful and the weak were not fair because they were not negotiated. The working classes suffered from the fact that the contracts securing the resource to the humiliores, such as the employment contract, as well as the contracts allowing the daily expenditure (residential lease, transport, insurance, etc.) were adhesion contracts, drawn up by the strongest for their benefit The solidarists then engaged in the critique of subjective right as conventionally understood, that is to say exercised for a selfish purpose. The criticism is radical in the publicist Duguit, who intends to reduce the subjective right to its social function, (5) softened by Saleilles, (6) watered down by Demogue. (7) In this spirit, the legislator or the judge had to undertake to reconstitute the natural solidarity between men, born from their common membership in the social body. For the benefit of weak social categories, they have created or developed various pre-contractual or contractual obligations at the expense of potential that the latter do not abuse their situation. The solidarity law has therefore removed, in whole or in part, certain areas from contractual freedom, for example pensions, social security, over-indebtedness of individuals, HLM legislation and regulated leases, consumption, etc. It imposed economic, managerial or protective public order. But there is also a judicial solidarity by which it is up to the judge to sanction abuses of economic power that have not been prevented by the law: meticulous protection of consent, hunt for unfair terms, abuse of rights …

2 ° – The solidarist vision

Contractual solidarity wants to reestablish a certain balance of rights between de facto unequal parties. It offers a new vision of the contract, adapted to unequal contractual relations. He adopts the principle of reality, following Gény, Gounot and Duguit in their denunciation of logical abstractions (abstract man is free) and metaphysical fictions. As men are concretely unequal, they cannot all fully exercise the rights they hold. While rejecting the autonomist vision of subjective law, the solidarists keep the will as the source of the binding effect, but subject its validity to the higher social demands of solidarism. (8) The authors of the beginning of the last century and their contemporary epigones rely on a dynamic, even magnifying reading, of the notions of good faith of article 1134 and fairness of article 1135 of the Civil Code. And it is admitted by all, remembering the draft Civil Code of Year VIII, that the obligation of good faith applies not only to the execution but also to the formation of the agreement.

The parties must therefore help each other both in the formation and in the execution of the contract, each taking into account the legitimate interests of the other. During performance in particular, beyond the simple (passive) obligation not to make it difficult or impossible by the co-contracting party, each person has a (positive) obligation to collaborate in achieving the object of the contract. This is because the contract is a work of cooperation between individuals, ”  a kind of microcosm, a small society where everyone must work for a common goal  ,” said Demogue. (9) The contract must be a high place of solidarity, friendship and even fraternal love. (10)

The lever of solidarity against the letter of the contract is naturally the judge, wherever the law has not provided for anything. The solidarist judge does not look to the past, to sanction behavior, but to the future, to reorganize the failing contractual construction. (11)He must exercise control over the formation and the execution of the contract which prevents abuse of power. For example, it must deem the unfair liability clause unwritten, it must ensure that the termination clause is invoked in good faith, it must impose renegotiation on the dominant contractor when economic, new and unforeseen circumstances at the time of its conclusion, unbalanced the contract to such an extent that the interest for which the weak party had contracted disappeared. Going further, the solidarists are in favor of judicial review for unforeseen reasons: does the administrative judge not admit it? And besides, wouldn’t there be some hypocrisy to allow the judge to impose renegotiation on the parties, while forbidding him to revise himself? (12) Rather than ensuring the abstract intangibility of the contract, the judge must promote the concrete achievement of his objectives. (13)

For some solidarist authors, all synallagmatic contracts are concerned, even those which only carry out an exchange, an instantaneous permutation of goods. For others, the field of choice of solidarism resides in contracts-organization, especially contracts of subjugation, which in reality make one the subject of the other, to the point where we have been able to speak of ‘a resurgence of feudalism. (14) These are contractual relationships of dependence, often exclusive, which pursue a common project, can address the same clientele and are part of a long term, such as distribution contracts.

It is especially when these contracts are broken that the solidarist doctrine must apply. The judicialization of the contract leads to the control of the management of the network by the judge. The latter must then assess the motivations of the one who breaks, thus giving rise to an obligation to motivate him.

B – The autonomist refutation of contractual solidarism

The refutations, numerous and vigorous, of the majority of the doctrine, are situated as much on the level of the vision of the man as on that of the legal theory.

1 ° – In terms of human vision

Isn’t there naivety, angelicism, romanticism and frankly contractual bovarysm to color the bond of obligation of love, friendship and fraternity? Brotherly love between tenants and landlords? Between employees and bosses? “  We will be surprised that at a time when marriage had perhaps turned too much into a contract, some people dreamed of transforming any contract into marriage  ”. (15) Isn’t there irenism in wanting to reconcile the irreconcilable at all costs? Moreover, by making the weak into a kind of incapacitated person, does not solidarism undermine his freedom and his dignity? Finally, would solidarism not be the fourrier of a sort of sweet and creeping collectivism?

2 ° – In terms of legal theory

In the first place, solidarism mixes law and morality, while their distinction is fundamental.

In the second place, one can wonder if contractual solidarism is really an autonomous concept. Explaining by solidarity all the restrictions on contractual freedom is abusive. The jurisprudential solutions claimed by the solidarists can as well be explained by the recourse to figures which remain largely classic, even if they have undergone a certain solidarist tinge, for example good faith, a traditional variable of adjustment of the contractual balance, protective economic public order, or even the cause of the contract, understood as covering the reasons entered into the contractual field. The obligation to provide information in the formation of certain contracts serves to enlighten the will of the weakest, to prevent possible errors, from a reasonable point of view of contractual freedom. The contribution of solidarism is marginal, which translates into greater demands in this area. Same observation when the judge checks whether the execution complies with the reasonable expectations of the parties, not only those expressed by the stipulations but also those induced by good faith or fairness: this check is in no way contrary to binding force classic contract. Once again, how does solidarism innovate? Is the notion only descriptive? not only those expressed by the stipulations but also those induced by good faith or equity: this control is in no way contrary to the classic binding force of the contract. Once again, how does solidarism innovate? Is the notion only descriptive? not only those expressed by the stipulations but also those induced by good faith or equity: this control is in no way contrary to the classic binding force of the contract. Once again, how does solidarism innovate? Is the notion only descriptive?

Third, a fundamental observation, solidarism undermines the binding force of the contract and therefore the security of transactions. A soft and imprecise concept, it carries unpredictability. Therefore, it opens to the chicane. The courts will be overwhelmed. As soon as a trader does bad business, as soon as he does not see the occurrence of the profits he hoped for, he will turn to the judge to ask him to force the other party to renegotiate, or even to rebalance himself. even. With each change in the economic situation, we will enter a phase of negotiations, which could well become permanent. (16) But to think thus, to act thus, is to forget that the successive contract is above all an act of forecasting (17)and that business life involves taking risks. As for the argument bet of the administrative review, it is not convincing. We know that the administrative judge recognizes the possibility of revising an administrative contract that external and unforeseeable circumstances at the time of its conclusion have unbalanced to the point that its execution, without being impossible, has become heavily in deficit for the private contractor. So, said this judge, the contract must continue and the Administration takes charge of part of the deficit. But the solution is explained by the need for the continuity of the public service, or if one wants, by the well understood interest of the conceding administration and not by equity or altruism for the benefit of the(18)

Finally, handing over the contract to the judge, making him a minister of equity, involves a strong risk of arbitrariness. The sole duty of the judge must be to ensure the effectiveness of the stipulations such as the parties have seen fit to express them, if necessary to interpret them in the light of their common intention, as he discovers it.

This is the debate. Let us now observe what the Court of Cassation has to say about it.

II – Reception of contractual solidarism by the Court of Cassation

Identifying the influence of solidarism in judgments is a difficult task. The Court of Cassation never explicitly refers to one doctrine rather than the other. It is therefore necessary to assess the treatment it reserves for the touchstones of solidarism, as brought to light by the doctrine: strength of public order, economic protection, extent of the requirement of good faith and mutual assistance in the formation and execution, setting aside unfair clauses limiting liability, good faith in invoking the termination clause, obligation to renegotiate in the presence of

A number of judgments called by the solidarist doctrine are rejected and mention that the court of appeal ”  was able to »Decide (estimate, deduce, etc.). Mark of a limited (or “light”) control, mainly relating to the internal logic of the referred decision, this phrase indicates that the Court of Cassation does not disapprove, since the trial judges did not make an error manifesto of appreciation. They express less an approval than an absence of disapproval in the state of the facts noted by the judges of the merits. These judgments cannot therefore set a precedent. Consequently, it is unwise to deduce from this what the doctrine of the Court of Cassation is. It is also necessary to take into account the publication in the Bulletin, decided or not by the chamber. This publication gives a valuable indication of the scope that the Court of Cassation intends to give to the decision in question.

We will focus successively on the stages of formation (A), execution (B) and then termination of the contract (C), without concealing that the porosity of these categories and their interdependence make the distinction somewhat artificial.

A – Solidarity during the formation of the contract

The formation of the contract is framed, for the benefit of the weak party, of formalities imposed by the economic public order of protection. In the 1980s, it was accepted that the judge may raise sua sponte a plea alleging that public order (Civ 1. Era , 22 May 1985 Bull # 159;. Civ 3. Th , November 20, 1985, Bull. n ° 153). This is no longer the case today ( Com. 3 May 1995, B. n ° 128 and Civ. 1 st , 15 February 2000, Bull. n ° 49). The generality of the terms used in the latter judgment suggests that it is not confined to credit contracts but establishes an overall solution according to which the judge cannot apply a protective provision if the protected party does not ask him to do so. not. In other words, the social interest at stake does not today authorize the judge to compensate for the deficiency of the weak party. Cause or consequence of the relative nature of the nullity? Still, the observation is of great practical significance to the extent that before the magistrate, natural judge of consumption, the weaker party often acts without a lawyer.

It is through the vices of consent and of the cause that solidarity is put to the test.

1 ° – Defects of consent

Traditionally, case law, concerned with ensuring the stability of contracts, gave a narrow meaning to defects in consent. An evolution is noticeable.

a) Deceptive reluctance and obligation to inform

The Court of Cassation is hesitating today between two conceptions.

In the liberal and classical conception, fraudulent reticence consists in intentionally not fulfilling a pre-existing obligation to inform.

For example, Civ.1ère, May 3, 2000 ( Photographs by Baldus ), Bull. n ° 131, cassation to the visa of art. 1116 c. civ. : ”  No information obligation weighed on the buyer” and the Court of Appeal violated this text by deciding the cancellation of a sale of photos at a price much lower than that of the art market while the buyer, who knew the market value, had killed it to the seller. The reluctance of one party is not fraudulent when the error made by the other is inexcusable.

But a number of recent judgments, assigning increased importance to good faith in the formation of the contract, consider that each is spontaneously liable for an obligation to inform likely to determine the consent of the other. Deceptive reluctance is characterized when the information is not given. It always makes the error caused excusable.

Com. February 27, 1996 , Bull. n ° 65 (rejection): the court of appeal ”  was able to retain  ” the fraudulent reluctance of the company manager who had ”  failed in the duty of loyalty which is imposed on the manager of a company with regard to any partner  ” by taking advantage of inside information that he had concealed from another partner to acquire the latter’s shares at a certain price and resell them at a higher price, whereas if he had known this information, the selling partner would not have not contracted at the agreed price. But the solution, rendered at the end of a limited control, seems to have to be confined to the relations between partners and managers, relations which imply a particular trust.

Same observation for Civ. 3 rd , November 15, 2000, Bull. n ° 171 (rejection): the court of appeal ”  was able to deduce that the fraud was constituted  ” on the part of a purchaser who, having knowledge of the richness of the composition of the basement, had left the seller in the ignorance of this fact, had indicated an inaccurate destination in the draft deed and had also hidden behind a nominee.

The solution is clearly stated by Civ. 3 rd , February 21, 2001 , Bull. n ° 20 (cassation): fraudulent reluctance on the part of the seller of a hotel who did not inform the buyer of the absence of an operating permit and the non-compliance of the premises with safety standards. The reasons of the Court of Appeal do not make it possible to exclude fraudulent reluctance despite the inexcusable nature of the error of the victim, a professional who had refrained from carrying out elementary verifications, on the grounds that “  fraudulent reluctance … always makes excusable error caused  “(finally, Civ 3. th , 16 September 2003, unpublished, appeal No. 02-13234; see Civ 1. AD, May 23, 1997, Bull. n ° 244).

Along the same lines, Civ. 1 st , May 15, 2002, Bull. n ° 132 (cassation): fraudulent reluctance of the professional seller of a damaged second-hand vehicle, due to an obligation to provide information, even if the plaintiff has not provided proof of concealment. Thus, making the tort aspect of fraud prevail over that of vice of consent, the Court of Cassation marks an increased requirement of the duty to contract in good faith, leaving in the shade and without object the question of the duty of the victim to inquire, even if the latter made an inexcusable error.

The reasoning was hardly far removed in matters of surety, where good faith seemed to become an independent obligation: Civ. 1 st , May 16, 1995, unpublished, appeal No. 92-20976 (rejection). The court of appeal legally justified its solution by this sole reason that ”  has failed in its obligation to contract in good faith »A surety the creditor who knew the situation of his debtor irreparably compromised and who had left the surety in the ignorance of this fact. Along the same lines, Com. June 17, 1997, Bull. n ° 188 (the manifest disproportion between the surety’s commitment and his patrimonial situation excludes the good faith of the creditor). But in circumstances similar to those of the last judgment cited, the Commercial Chamber, (October 8, 2002, Bull. N ° 136, Nahoum , rejection by substitution of a pure legal reason) calls into question the principle of proportionality in the law of bond. The sureties, corporate officers of the surety company, never having alleged ” that the bank would have had on their income, their assets and their reasonably foreseeable repayment faculties in the state of the expected success of the real estate transaction undertaken by the company information (which they themselves) would have ignored, is unfounded to seek the responsibility of this bank  ”because of a disproportion between the amount of their commitment and their financial capacities (see already Com. March 26, 2002, Bull. n ° 57 on excessive mortgage credit).

b) Economic constraint and violence

“  Economic constraint is linked to violence and not to injury  ”: Civ. 1 st , May 30, 2000, Bull. n ° 169 (cassation to the visa of arts. 2052 and 2053 c. civ.). The same chamber ( Civ. 1 st , April 3, 2002, Bull. N ° 108, cassation to the visa of art. 1112 c. Civ.) Specifies the two cumulative conditions for the application of the vice of violence to economic constraint : ”  Only the abusive exploitation of a situation of economic dependence, made to profit from the fear of an evil directly threatening the legitimate interests of the person, can vitiate his consent with violence. “. This is not the case with a salaried designer who cedes her copyright to her employer, fearing that her refusal will cause her to lose her job, while the Court of Appeal had not found that the employee was herself threatened by a dismissal plan and that the employer had exploited this circumstance with her. By dissociating constraint from injury to link it to violence, the Court of Cassation opens up a wider scope for it and thus makes it easier to denounce excessively unfavorable conditions imposed abusively by one party on the other.

2 ° – The cause

Conventionally, the lack of cause entails the total cancellation of the contract. However, the notion of cause is sometimes used teleologically, depending on the interest of the party to be protected. It results in only partial cancellation of the contract, deeming one of its clauses to be unwritten while maintaining the others. Thus, it is a more balanced economy of the contract which is imposed through a certain notion of cause which has become an instrument of contractual justice.

In this sense, the annulment of the only clauses limiting liability which aim to exonerate the debtor from the breach of the essential obligation of the contract is illustrated by two judgments.

Com. October 22, 1996, Bull. n ° 261 ( Chronopost ), cassation to the visa of art. 1131 c. civ. : a rapid transport company stipulates the limitation of its liability in the event of late delivery, which the court of appeal accepts by noting that the transporter had not committed gross negligence. But, says the Court of Cassation, “  because of the breach of this essential obligation, the clause limiting the liability of the contract, which contradicted the scope of the commitment made, had to be deemed unwritten.  “. Solution confirmed by the same chamber: Com. July 17, 2001, unreported, appeal no.98-15.678 ( Securinfor , dismissed ).

But sometimes the entire contract is canceled for lack of cause: Civ. 1 st , July 3, 1996, Bull. n ° 286, rejection: the cancellation for lack of cause of a contract for the creation of a “video point” and the rental of cassettes is legally justified because ”  the execution of the contract according to the economy desired by the parties was impossible, the Court of Appeal deduced from this exactly that the contract was devoid of cause, since the default of any real consideration for the obligation to pay was noted. And »the cost of renting tapes to the company due to a small number of customers, a factor known to the company. The cause is understood here as the common objective of the parties, and not as the provision of the cassettes. The autonomist solution would probably have been the opposite, consisting in saying that the operators had committed themselves with full knowledge of the situation and that the cause-counterpart (the provision of cassettes) had been verified.

B – Solidarity during the execution of the contract

The duty of collaboration between the parties, a mark of contractual solidarity, is sometimes sanctioned through the concepts of abuse and good faith.

1 ° – Abuse in execution

We know that since the decisions of the Plenary Assembly of 1 st December 1995 (Bull. n ° 7 et seq.), the most powerful party can unilaterally fix the price in long-term maintenance framework rental contracts with an exclusive supply clause and franchising with a similar clause, but subject to abuses in the fixing of the price, such abuses being able to lead to the termination of the contract or to compensation. It means moving from control of training (art. 1129 c. Civ.) To control of execution (art. 1134 and 1135). But is abuse classically the intention to harm (or its equivalent)? Or is it, in the solidarity sense, the exercise of a right not in accordance with its social purpose, that of arbitrarily and unilaterally fixing the price, selfishly, without taking into account the legitimate interest of the co-contracting party? Two responses were given by unpublished judgments, delivered after a limited review.

Com. January 21, 1997, unpublished, appeal n ° 94-22.034, rejection: “ The judgment notes that the disputed exclusive supply clause concerned an extended list of suppliers, an extended purchasing guide as well as a product catalog and a indicative sales price and retains that the franchisor has left the franchisee the freedom to negotiate prices according to the law of the market without suffering from a dominant and arbitrary position of the franchisor, from which it follows that (the franchisor) has not committed abuse in the application of the exclusive supply clause ”. The Court of Appeal ” was therefore able … to reject the request for cancellation of the franchise contract “.

Com. January 15, 2002, unreported, appeal n ° 99-21.172 ( France Motors ), rejection. The Court of Appeal ” was able to consider that (the franchisor) had abused its right to unilaterally fix the conditions of sale and that (he) owed compensation (to the franchisee)”. Thus, the trial judge, with regard to his “ sovereign assessment of the facts and circumstances of the case ”, characterized the abuse when, in a difficult economic situation, the supplier imposed drastic conditions of sale on his partner, while it continued to make a profit and these conditions of sale led the concessionaire to compulsory liquidation. (19)

2 ° – Good faith in the execution

a) The obligation to reclassify (or to adapt the employee to the evolution of his job)

Since 1992, the Social Chamber (February 25, 1992, Bull. N ° 122, rejection) has imposed on the employer, who is considering dismissing an employee for economic reasons, the prior obligation to reclassify this employee. The Court of Appeal, which noted that an employer had dismissed an employee by removing a post of person in charge of the computer customer file, while at the same time hiring a biller and which had brought out that the dismissed employee could have been reclassified in this job compatible with his abilities, ”  was able to decide »That the dismissal was not based on an economic reason. The Court of Appeal had concluded that there was no real and serious cause insofar as there had been no abolition of post. However, it is on the obligation of good faith that the Social Chamber preferred to base itself in order to reject. In the same sense, the Social Chamber judges (April 8, 1992, B. n ° 258, cassation on art. 1134 c. Civ.) That “  within the framework of its obligation of reclassification in the company, the employer must, in the event of job abolition or transformation, offer the employee concerned jobs of the same category or, failing that, of a lower category, even by way of substantial modification of employment contracts  ”.

Trend previously announced by the Social Chamber, which had decided that in order to assess the reality of the economic reason for dismissal within a company, it was necessary to take into account the possibilities of reclassification within the group (in particular Soc., February 20, 1991, Bull . n ° 86, cassation under article L. 122-14-4 c. trav.). Trend accentuated by two judgments of April 5, 1995 (Bull. N ° 123, cassation with regard in particular to art. L. 321-1 c. Trav.) Judging that ”  the economic difficulties must be assessed with regard to the sector of activity of the group  “(and not of the only company or of the only group) and that” the possibilities of redeploying employees must be sought within the group among companies whose activities… allow for the rotation… of the personnel concerned  ”, whereas, as we know, the“  group  ”has no precise legal existence. Therefore, dismissal for economic reasons is only justified under certain conditions, including justification by the employer that he has sought reclassification. A praetorian creation, this obligation to propose to the employee the modifications of the contract which may be necessary to maintain employment was enshrined in the law of January 17, 2002, known as “of social modernization” (new art. L. 321-1 c . work)  (20). The transformation of the job must match the employer’s proposal to transform the contract whenever possible. We note that this obligation of reclassification (of “reinforced” means) does not weigh symmetrically on the employer and the employee: the latter can refuse reclassification proposals without committing any fault (Soc., January 29, 2003, Bull. N ° 28).

b) The obligation to renegotiate

Two decisions should be noted. In both cases, a change in economic circumstances attributable to the supplier or principal exposes the distributor to increased competition. Does taking the distributor’s interests into account in solidarity oblige the supplier or the principal to (re) negotiate to enable it to face the competition?

Com. November 3, 1992, B. n ° 338 ( Huard ), rejection: ”  the court of appeal was able to decide  “, at the end of a detailed reasoning noting the presence of an exclusive supply clause, the work carried out by the distributor at his point of sale, the fact that the price applied by the supplier to his distributors was higher than the price at which he himself sold his products to the final consumer through his agents, that the supplier had been unfair and that ‘”By  depriving Mr. Huard of the means to charge competitive prices, the company … had not performed the contract in good faith “. The solution of the Court of Appeal, according to which there had been in this case failure to renegotiate, even in the absence of a clause to this effect, is therefore not condemned.

Com. November 24, 1998, B. n ° 277 ( Chevassus Marche ), cassation for a double lack of legal basis, in particular, with regard to article 4 of the law of June 25, 1991 relating to the relations between the commercial agents and their principals: the court of appeal should have investigated whether, in view of the fact that ” the relations between the commercial agent and the principal are governed by an obligation of loyalty  “, the principals, who agreed to lower prices by means of parallel sales, ”  had taken concrete measures to allow their agent to practice competitive prices … and thus put him in a position to exercise his mandate “. The principal undertakes to help the agent to develop the clientele and to adapt the contract to the competitive context. But isn’t the chosen solution justified above all by the legal obligation of loyalty inherent in the agency contract?

It does not appear, in view of these two decisions, that the obligation to renegotiate in the event of a change of circumstances exists as such and in general. In these cases, it concerns only distribution contracts and may be explained by the concern to allow condemnation of the party whose behavior, subsequent to the conclusion of the contract, had contributed to making its execution ruinous by the other.

In addition, in the matter of unforeseen events (here strictly speaking), the third Civil Chamber (December 10, 2003, appeal n ° 02-14.490, rejection) does not call into question the traditional solution: rejection of the revision of a contract. real estate leasing when the conditions initially foreseen, modified by unforeseen economic circumstances and subsequent to its conclusion (collapse of the rental market), make its execution ruinous or impossible for the debtor. ”  The court of appeal … was able to deduce that the lessor, which was not responsible for the difficulties of the rental market … and which had only applied the terms of the contract, had no obligation to propose a protocol modifying the initial contract and

C – Solidarity upon termination of the contract

The Cour de cassation sometimes takes into account both the circumstances and the reasons for the termination or non-renewal. The decisions claimed by the solidarists mainly concern subjugation contracts: distribution or work.

1 ° – The circumstances of the breach

a) The obligation to invoke the termination clause in good faith

The first Civil Chamber (January 31, 1995, Bull. N ° 57, cassation to the visa of art. 1134 c. Civ.) Declares that “  a termination clause is not acquired if it has been implemented in bad faith by the creditor  ”and censures the judgment for lack of legal basis in that the court of appeal did not investigate whether the creditor was in good faith. Solution confirmed by Civ. 1 st February 16, 1999, Bull. n ° 52 (see also Civ. 3 rd , June 5, 1991, Bull. n ° 163 and December 2, 1998, Bull. n ° 231).

b) Assistance for retraining

If the termination or non-renewal are likely to cause the economic disappearance of the partner, is the grantor bound by an obligation of assistance allowing the reconversion or reclassification of the abandoned concessionaire?

Com. March 27, 2001, unpublished, appeal n ° 98-19.926, rejection: ”  the court of appeal was able to estimate  ” that, in the event that the supplier does not renew an exclusive distribution contract for a fixed period within the prescribed period , while offering a replacement solution to its partner, which it was not required to do, this supplier did not commit any abuse.

Much more clearly, Com. May 6, 2002, Bull. n ° 81, cassation: violates art. 1134 and 1147 v. civ. the court of appeal, which places on a grantor an obligation to assist the concessionaire with a view to his retraining when the contract is terminated. The Commercial Chamber, which curtly censures the solidarist motivations of the Court of Appeal, (21) judges that on the one hand, respect for ”  contractual notice, suitable for enabling the concessionaire to ensure his retraining  ” excludes the abuse of termination and that on the other hand, the obligation of assistance to the concessionaire does not arise from the good faith or equity required by art. 1134 and 1135: ”  the grantor is not bound to

But in the opposite direction, the Social Chamber considers that the non-competition clause which is imposed on employees leaving the company must be compensated by a financial contribution, which becomes a condition of its validity (Soc. 10 July 2002, three judgments, Bull. N ° 239, cassation on the plea raised automatically concerning the violation of the fundamental principle of free exercise of a professional activity, whole of article L. 120-2 of the labor code). Previously (Soc. 11 October 1990, Bull. N ° 459), the Social Chamber did not require that the clause be accompanied by compensation, unless otherwise provided for in the collective agreement.

2 ° – The reasons for the rupture

Is there a solidarist obligation to justify the termination and therefore to submit it to the control of the judge? Traditionally, neither the non-renewal of a fixed-term contract nor the termination of an open-ended contract need be justified, with the exceptions of the employment contract and the mandate of common interest (we also know that integrated distribution contracts are not mandates of common interest: Com. October 7, 1997, Bull. no. 252). For example, for the refusal to renew an exclusive fixed-term concession contract: Com. June 9, 1992, unreported, appeal n ° 90-17.101, rejection.

Solution strongly confirmed in the matter of fixed-term distribution contract by a recent judgment of the Commercial Chamber (25 April 2001, unpublished, appeal n ° 98-22.199), which judges in support of its rejection: ”  the court of The appeal rightly stated that company B. did not have to give reasons for the non-renewal of the contract concluded with company AF, whether these, were they fallacious or not serious, could not constitute a abuse and that it was unnecessary to examine the grounds for termination invoked by company B.  ”.

However, there are decisions in which the Court of Cassation checks the legitimacy of the grounds for the termination: Com. January 20, 1998, Bull. n ° 40, cassation to the visa of art. 1147 and 1134 c. civ .: an exclusive concession contract has been concluded for an indefinite period. Despite compliance with the contractual notice, the court of appeal does not draw the legal consequences from its own findings, which decides that the grantor who terminates the contract two years after its conclusion does not commit an abuse of rights when it has noted that given the investments required of the concessionaire, the latter should benefit from a relatively long operating period. The Commercial Chamber, in this decision at length motivated, long-term contractual relationships  ”).

In favor of an obligation to motivate and a control of motivation: Com. July 2, 2002, unpublished, appeal n ° 01-12.685, cassation to the visa of art. 1382 c. civ. : a concession contract was concluded intuitu personae . It provided that its transfer to a third party would be subject to the approval of the grantor, the latter having undertaken to ”  examine fairly and with all the care required »The proposed change. The court of appeal ruled that the refusal of approval was unreasonable because it was not justified when the buyer was presented. Cassation for not having checked whether the reasons given during the proceedings were not such as to justify the refusal of approval. However, it is open to question whether, in the present case, it is not from the existence of an approval clause that the obligation to state reasons is deduced.


* *

In the end, what do we see?

Essentially in two areas, by giving particular emphasis to the notion of good faith, the Court of Cassation tends to ensure a balance in the contractual operation, which the autonomy of the will would undoubtedly not have been sufficient to guarantee. It is first of all the formation of the contract (treatment of fraudulent reticence, economic constraint and the scope of the annulment in matters of cause). But this movement does not go so far as to protect the weak against its own inertia (dulling of the effectiveness of economic public order of protection). It is then about the employment contract, perhaps because of the respectable specificity of the work force: obligation of reclassification of the employee and assistance in his retraining.

But elsewhere, the record of solidarity is meager. With regard to subjugation contracts, the preferred land of the doctrine, the execution of the contract, with limited exceptions, does not give rise to abuse in the unilateral fixing of the price. In the absence of blameworthy actions on the part of the strong party, there is no obligation to renegotiate the contract which has become unbalanced. The unforeseen is still not allowed. There is no obligation to provide for the reconversion of the ousted concessionaire, notice in lieu. There is no obligation to justify the break.

It therefore appears that the Court of Cassation is not ready for the “big night”, hoped for by some, feared by others, of article 1134 paragraph 3 of the Civil Code.

1 . Ch. Jamin, “Plaidoyer pour le solidarisme contractuel”, in “The contract at the beginning of the 21st century”, Studies offered to J. Ghestin, LGDJ 2001; D. Mazeaud, “Loyalty, solidarity, fraternity, the new contractual motto? “, In ” The future of law “, Mélanges in homage to F. Terré, Dalloz, 1999 (dir. Of) Ch. Jamin and D. Mazeaud,” the new crisis of the contract “, Dalloz 2003 and (dir. Of ) L. Grynbaum and M. Nicod, “Contractual solidarism, myth or reality? », Forthcoming, Economica, 2004.

2. L. Duguit, “The general transformations of private law since the Napoleon Code”, Félix Alcan, 1920, p. 18.

3. L. Bourgeois, “Solidarité”, Paris, Armand Colin, 1896, p. 116.

4. Mutatis mutandis , economic theory experiences a similar debate between the two models of capitalism (see Michel Albert, “Capitalisme contre capitalisme”, Le Seuil, 1991). The author distinguishes the Rhine model, or the social market economy, characterized by social consensus and concern for the contractual environment, and the New American model of the Chicago School (Milton Friedman), individualist, of which profit is the only law. He notes, with regret, the victory of the second (“autonomist”) over the first (“solidarist”).

5. Lastly “Treaty of constitutional law”, 3 rd ed., Volume 1, 1927, pp. 37, 316 s. and 380.

6. See the words of this author on the legal nature of adhesion contracts, “De la declaration de will”, Pichon, 1901. R. Saleilles proposes the creation of new obligations at the expense of the drafter of the adhesion contract. . It also formalizes the theory of risks in matters of occupational accidents.

7. R. Demogue, “Treaty of obligations in general”, Arthur Rousseau, 1923 – 1931. E. Gounot wants to make the contract “  a principle of union and solidarity  ”, “The principle of autonomy of the will in law private, critical study of legal individualism ”, Dijon, 1912, p. 376.

8. Ch. Jamin, “Plaidoyer…” prev p. 448.

9. R. Demogue, op. cit ., volume 6, chap. 1, p. 9 (1931)

10.   A. Serials, Droit des obligations, 2 nd ed., PUF 1998, n ° 55; Mme Thibierge-Guelfucci, “Free speech on the transformation of contract law”, Rev. trim. dr. civ. 1997, p. 376; D. Mazeaud, “Loyalty…” prev.

11. See for example Gounot, who recommends that the judge adopt a teleological reasoning to save the objective pursued by the contract, op. cit . p. 201.

12. H. Lécuyer, “The contract, act of forecasting”, Mélanges F. Terré, Dalloz 1998, p. 656.

13. Ch. Jamin, “Revision and intangibility of the contract or the double philosophy of art. 1134 of the Civil Code ”, Droit et Patrimoine, March 1998, p. 58.

14. Ch. Jamin, “Plaidoyer…”, op. cit ., in fine .

15. Malicious observation by Dean J. Carbonnier, Civil Law, Les obligations, 22 nd ed., PUF n ° 114.

16. See our study “The Obligation to Negotiate”, Rev. trim. dr. com. 1985, p. 264 s.

17. H. Lécuyer, op. cit., p. 643.

18. EC March 30, 1916, Compagnie Générale lighting Bordeaux , Gaja 13 th ed. p. 127, concl. Chardenet; see also CE 4 June 2000, Municipality of Staffelfelden , CJEG 2000, p. 473, concl. Bergeal.

19.  To bring closer to Paris, 15 th ch. A, October 24, 2000, D. 2001, somm. comm. 641 and 3236: “the obligation of good faith implies that each party should refrain from any abuse, behave in a reasonable and moderate manner, without acting in its exclusive interest or unduly harming its partner  ” (unilateral increase of 150% the rent of a safe).

20. This same law specifies (new art. L. 120-4) that ” The employment contract is performed in good faith “. The reiteration of the principle laid down by art. L. 121-1 (” The employment contract is subject to the rules of common law “) is undoubtedly instructive.

21. Paris February 11, 1999, 5 th ch. B ( Fiat Auto France ); and from the same chamber and in the same spirit, March 26, 1999 ( Automobiles Peugeot )

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