DIFFUSER CONTRACT
LexInter | November 28, 2002 | 0 Comments

DIFFUSER CONTRACT

On the appeal brought by: 1 ° / the company La Voix du Nord, a public limited company with registered office at 8, place du Général de Gaulle, 59023 Lille Cedex, 2 ° / Mr. Jean-Michel Leclerc, residing at 40, rue Blaise Pascal , 59960 Neuville-en-Ferrain, in cassation of a judgment rendered on April 1, 1997 by the Douai Court of Appeal (1st Civil Chamber), in favor of Mr. Patrick Deremetz, residing at 8, route de Bettrechies, 59570 La Flamengrie, defendant at the cassation;

The applicants invoke, in support of their appeal, the two grounds of cassation annexed to this judgment;

Resources produced by SCP GATINEAU, lawyer at the Councils for La Voix du Nord and M. Leclerc

FIRST MEANS OF TERMINATION

The judgment under appeal is criticized for having condemned the Voix du Nord to pay Mr Deremetz 100,000 francs in damages;

I. – To the Reasons That the relations existing between Patrick Deremetz and the Voix du Nord are not enshrined in any written contract; That, however, it results in particular from the invoices established by the Voix du Nord that Patrick Deremetz was remunerated by commission by the latter and that he was not the owner of the newspapers since the Voix du Nord took back unsold items; That Patrick Deremetz, however, had an interest in the distribution of newspapers since the amount of his remuneration varied according to the number of newspapers sold, so that he had an interest in the growth of the company by creation and development of the clientele, this which characterizes the mandate of common interest; That the recovery of unsold items constituted a participation of the Voix du Nord in the losses and was not exclusive of the common interest;

1. – While the trial judges are required to restore to the facts their exact qualification; That the mandate of common interest supposes that the agent has acted on behalf of his principal; That the contract under which a person carries out a sales activity under his name on behalf of another party, does not bear the financial burden of unsold products of which he is not the owner, and receives commissions that vary according to of the quantity of sales made is an indefinite commission contract; That in this case the Court expressly noted that Mr. DEREMETZ was paid by commission, was not the owner of the newspapers which he distributed, received remuneration varying according to the number of newspapers distributed and did not bear the financial burden unsold items;

2. – Whereas the mandate of common interest supposes that the achievement of the object of the mandate presents for the principal and the agent the interest of a growth of the company by creation and development of the clientele as well as the participation the financial risks of the joint venture; That the Court expressly noted here that Mr. DEREMETZ did not run any financial risk insofar as the unsold newspapers were taken back by the Voix du Nord; That by judging nonetheless that the contract binding the parties was of common interest, the Court did not draw the legal consequences from its own findings in violation of Articles 1984 and 2004 of the Civil Code;

II. – And to the Reasons That the mandate of common interest is by nature irrevocable ad nutum; That in the absence of a written contract ruling out this irrevocability, as does the standard contract produced by the Voix du Nord in its article 9 according to professional usage, the agent can only revoke such a mandate for fault of which he is responsible for providing proof; That such proof is insufficiently reported by the letters emanating from the Voix du Nord dated October 11 and December 4, 1989 which are not supported by any document capable of showing that Mr. Deremetz, who even if he was bound by a mandate of common interest was a self-employed worker, had to communicate his accounting documents to the Voix du Nord and would therefore have made a commitment that he would not have then respected; That the letter of December 4, 1989 affirms without bringing the proof that Mr. Deremetz would not be any more affiliated with Urssaf since 1988 or that it would grant too important discounts to a hotel in Lille; That the proof of a fault of Mr. Deremetz is not reported and the Voix du Nord must answer for this abusive breach of the contract; That this rupture created a significant damage taking into account the commissions which it perceived even if it did not work exclusively with this one; That in view of the elements available to the Court, this damage can be assessed at 100,000 francs with interest from this judgment; he would grant too great discounts to a hotel in Lille; That the proof of a fault of Mr. Deremetz is not reported and the Voix du Nord must answer for this abusive breach of the contract; That this rupture created a significant damage taking into account the commissions which it perceived even if it did not work exclusively with this one; That in view of the elements available to the Court, this damage can be assessed at 100,000 francs with interest from this judgment; he would grant too great discounts to a hotel in Lille; That the proof of a fault of Mr. Deremetz is not reported and the Voix du Nord must answer for this abusive breach of the contract; That this rupture created a significant damage taking into account the commissions which it perceived even if it did not work exclusively with this one; That in view of the elements available to the Court, this damage can be assessed at 100,000 francs with interest from this judgment;

1. – Whereas the mandate of common interest can cease in the event of just cause apart from any fault of the agent; That by affirming that the termination of such a mandate could intervene only in the event of fault of the agent, the Court violated articles 1984 and 2004 of the civil code;

2. – While simply saying that the letters of December 4 and 11, 1991 did not establish a fault on the part of the agent without investigating whether these facts, without constituting faults, nevertheless characterized the just reason for the termination of the mandate of common interest, the Court deprived its decision of any legal basis with regard to Articles 1984 and 2004 of the Civil Code;

3. – While the agent is required to account for his management to his principal and to be right to the principal for everything he has received by virtue of his power of attorney; That it resulted from the letters of October 11 and December 4, 1989 on which the Voix du Nord relied that Mr. DEREMETZ had not only never communicated the accounting and supporting documents relating to his activity as agent but also systematically refused to report on the evolution of its activity so that the Voix du Nord had been unable to exercise any control; That by affirming that it did not result from the aforementioned letters that Mr. DEREMETZ had undertaken to communicate his accounting documents to the Voix du Nord, the Court which disregarded the

SECOND SUBMISSION OF TERMINATION

The contested judgment is criticized for having said that the sum of 162,853.89 francs would bear interest at the legal rate from 12 March 1991;

On the grounds that it is rightly that Mr. Deremetz was ordered to pay the sum of 162,853.89 francs; That this can only bear interest in application of Article 1153 of the Civil Code in its drafting prior to the law of July 13, 1992, only from the legal action presented to the District Court at the hearing of March 12, 1991 ;

1. – While the judges on the merits cannot base their decision on a legal argument automatically raised without having first invited the parties to present their observations; That by judging that it was appropriate to make the legal interest run on the sum due by Mr. DEREMETZ from the time of the legal action presented before the District Court while neither Mr. DEREMETZ who was content to contest the quantum of his debt , nor a fortiori the Voix du Nord which requested the confirmation of the judgment which had perfectly made run these legal interests as from the formal notice did not discuss this point, the Court violated article 16 of the new code of civil procedure;

2. – While under the terms of article 1153 of the civil code in the version applicable to this instance, the damages are due from the day of the summons to pay; What constitutes a summons to pay a letter sent with a request for acknowledgment of receipt when it appears from its terms a sufficient interpellation; That by a letter addressed on February 5, 1990 to Mr. Deremetz with request for acknowledgment of receipt, the Voix du Nord put the latter in formal notice to send him a check for 162,853.89 francs on pain of initiating a contentious procedure; That by making the legal interests run from the time of the legal claim, when it was appropriate, as had perfectly done the Tribunal de Grande Instance of Lille,

THE COURT, in the public hearing of January 18, 2000, where were present: Mr. Dumas, president, Mr. Grimaldi, advisor rapporteur, MM. Tricot, Badi, Ms Aubert, Vigneron, Tric, Besançon, Lardennois, Collomp, advisers, Ms Graff, Mr de Monteynard, referendum advisers, Mr Jobard, advocate general, Ms Arnoux, chamber clerk;

Whereas, according to the referred judgment (Douai, April 1, 1997), Mr. Deremetz distributed various newspapers, in particular on behalf of the company La Voix du Nord (the company), from 1985 to the end of 1989 ; that difficulties being born between the parts, the company cut off its relations with Mr. Deremetz;

On the first plea, taken in its five branches:

Whereas the company criticizes the judgment for having ordered it to pay Mr. Deremetz the sum of 100,000 francs as damages for having, without notice, terminated the broadcaster’s contract then, according to the appeal, on the one hand, that the trial judges are required to restore to the facts their exact qualification; that the mandate of common interest supposes that the agent has acted on behalf of his principal; that the contract under which a person carries out a sales activity under his name on behalf of another party does not bear the financial burden of unsold products of which he is not the owner and receives commissions which vary according to the quantity of sales made is an indefinite commission contract; in the present case, the Court of Appeal expressly noted that Mr. Deremetz was paid on commission, did not own the newspapers it distributed, received remuneration that varied according to the number of newspapers distributed and did not bear the financial burden of unsold copies; that by noting that Mr. Deremetz had an interest in the distribution of newspapers since his remuneration varied according to sales to characterize the existence of a mandate of common interest, without seeking, even though it had characterized all the components of the commission contract and that the variation in remuneration was common to the mandate and the commission contract, if the newspapers were distributed under the personal name of Mr. Deremetz or under that of La Voix du Nord, the only circumstance that would have prevailed to retain the existence of a mandate of common interest, the Court of Appeal deprived its decision of legal basis with regard to articles 1984 and 2004 of the Civil Code, 12 of the new Code of Civil Procedure and 94 of the Commercial Code; then, on the other hand, that the mandate of common interest supposes that the achievement of the object of the mandate presents for the principal and the agent the interest of a growth of the company by creation and development of the clientele as well. that participation in the financial risks of the joint venture; that the Court of Appeal expressly noted here that Mr. Deremetz ran no financial risk insofar as unsold newspapers were taken over by La Voix du Nord; that, nevertheless, judging that the contract binding the parties was of common interest, the court of appeal did not draw the legal consequences from its own findings, in violation of articles 1984 and 2004 of the Civil Code; then, on the third part, that the mandate of common interest can cease in the event of just cause apart from any fault of the agent; that affirming that the cessation of such mandate could intervene only in the event of fault of the agent, the court of appeal violated articles 1984 and 2004 of the Civil code; then, fourthly, that by contenting itself with saying that the letters of December 4 and 11, 1991 did not establish a fault on the part of the agent, without investigating whether these facts, without constituting faults, nevertheless characterized the just reason for the termination of the mandate of common interest, the court of appeal deprived its decision of legal basis with regard to articles 1984 and 2004 of the Civil Code; and then, finally, that the agent is required to account for his management to his principal and to account to the principal of all that he has received by virtue of his power of attorney; that it resulted from the letters of October 11 and December 4, 1989, of which La Voix du Nord relied, that Mr. Deremetz had not only never communicated the accounting and supporting documents relating to his activity as agent, but also systematically refused to report on the development of its activity, so that La Voix du Nord had been unable to exercise any control; that by affirming that it did not result from the aforementioned letters that Mr. Deremetz had undertaken to communicate his accounting documents to La Voix du Nord, the court of appeal, which disregarded the

But expected, in the first place, that after noting that no written contract had been entered into between the parties, that Mr. Deremetz was paid on commission and that he was not the owner of the newspapers since the company took over the unsold, the judgment holds that it had an interest in the development of the company by creating and developing customers; In the light of these reasons, and since the participation of the agent in the financial risks of the joint venture is not a constituent element of the mandate of common interest, the Court of Appeal was able to consider that the the contract between the parties was a mandate of this nature, from which it follows that Mr. Deremetz was acting not in his own name, but in the name of the company;

Whereas, in the second place, since the company did not invoke, in support of the breach of the contract, any reason other than the faults of Mr. Deremetz, the judgment retains exactly, none of these faults having been established , that the rupture is abusive;

Whereas, finally, the judgment, far from saying that Mr. Deremetz is not required to account for his management, retains that the latter, who worked for several newspaper publishers, was not required to communicate his company accounting;

From where it follows that the court of appeal legally justified its decision and that the means, which lacks in fact in its fifth branch, is not founded for the remainder;

And on the second means:

Whereas the company still reproaches the judgment for having said that its debt of 162,853.89 francs will bear interest at the legal rate as from the legal action of March 12, 1991, then, according to the appeal, on the one hand , that the judges of the merits cannot base their decision on a plea of ​​law raised automatically without having, as a preliminary, invited the parts to present their observations; that in judging that it was appropriate to make the legal interest run on the sum due by Mr. Deremetz as from the legal action presented to the district court while neither Mr. Deremetz, who was content to contest the quantum of its debt, nor, a fortiori, La Voix du Nord, which asked for the confirmation of the judgment which had perfectly made these legal interests run from the formal notice, did not discuss this point, the court of appeal violated article 16 of the new Code of Civil Procedure; and then, on the other hand, that under article 1153 of the Civil Code, in the version applicable to this instance, the damages are due from the day of the summons to pay; that constitutes a summons to pay a letter addressed with request for acknowledgment of receipt when it emerges from its terms a sufficient interpellation; that, by a letter sent on February 5, 1990 to Mr. Deremetz with request for acknowledgment of receipt, La Voix du Nord gave notice to send him a check for 162,853.89 francs, under penalty of initiating proceedings contentious; that by making the legal interests run from the legal claim, when it was appropriate, as the

But expected, on the one hand, that by concluding the rejection of the demand for payment of the company formed against him, Mr. Deremetz contested all the elements of his debt;

Whereas, on the other hand, by retaining that the interest at the legal rate should run from the date of the legal claim, the Court of Appeal pointed out that the content of the letter of February 5, 1990 did not include an interpellation sufficient and, consequently, not worth a formal notice within the meaning of article 1153 of the Civil Code;

From where it follows that the court of appeal legally justified its decision and that the means is without foundation;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the company La Voix du Nord and Mr. Leclerc to pay the costs.

On the report of Mr. Grimaldi, advisor, the observations of the SCP Gatineau, lawyer of the company La Voix du Nord and of Mr. Leclerc, the conclusions of Mr. Jobard, general counsel, and after having deliberated in accordance with the law ; Mr. DUMAS president.

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