The Court of Cassation is the highest court in the French judiciary. Civil, commercial, social or criminal cases are first ruled upon by courts of first instance
LexInter | August 25, 2005 | 0 Comments

On the appeal brought by: 1 ° / Ms. Rose Ferrero widow Addis, 2 ° / Mr. Michel Addis, residing 3 ° / Mr. Christophe Addis, all three residing rue Danton, 83150 Bandol, in cassation of a judgment rendered on 26 September 1997 by the Aix-en-Provence Court of Appeal (8th Civil Chamber, Section B), in favor of Mr. Yves Savio, residing on Chemin du Grand If, Vallongue district, 83150 Bandol, defendant at the cassation;

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

Means produced by Me Foussard, lawyer with the Councils for the Addis consorts.

FIRST MEANS OF TERMINATION

The contested judgment incurs censorship.

IN THAT he refused to consider that there had been a de facto company created between the ADDIS consorts and Mr. Yves SAVIO, for the operation of a boat, and consequently to reject the requests made by the ADDIS consorts against M. SAVIO;

FOR THE REASONS THAT if it results from the parts that the situation envisaged by Mr. ADDIS, before his death, and Mr. SAVIO, did not occur, on the other hand, Mr. SAVIO resumed his functions, after the death of Mr. ADDIS, and received the widest powers from Ms. ADDIS to manage the vessel, both technically and commercially, Mr. SAVIO even received power of attorney on Ms. ADDIS ‘bank account to pay the suppliers; that this situation and the fact that Mr. SAVIO has deployed, in the interests of the ADDIS consorts, much more effort than is required to do a salaried captain may give rise to the presumption that the latter has made contributions in the industry and had an affectio societatis; what else must we prove with certainty that Mr. SAVIO participated in the losses and profits of the alleged de facto company in order to legally establish its existence; that no accounting document makes it possible to verify that Mr. SAVIO has received remunerations other than his wages or that he has retained by him part of the receipts which he was responsible for collecting; that the certificate produced by Ms. ADDIS’s chartered accountant according to which there would have been a sharing of the profit, is most suspect and insufficient to establish this sharing, because not supported by the slightest proof of the payments which, given their importance , should have, if they existed, left traces on Mrs ADDIS ‘bank account; that the frauds committed by Mr. SAVIO, as a salaried captain, due to insufficient declarations of the number of passengers are established but that it is not certain that he derived a personal benefit from these frauds and that all of the partially defrauded revenue was not handed over to the ADDIS consorts; that, moreover, Mr. SAVIO was the subject of a personal tax audit during 1989, the last year in which he was in the service of Ms. ADDIS, and that this audit did not give rise to any adjustment that could lead to the assumption that that he personally benefited from the frauds evoked above and which did not involve a tax adjustment that for only Mrs. ADDIS;

ALORS THAN apart from contributions and affectio societatis, the existence of a society created de fact simply supposes the will of the parties to take part in the profits and losses; that there is no requirement that there be effective participation in the profits and losses; in the present case, after having admitted the existence of a contribution in industry on the part of Mr. SAVIO and of an affectio societatis between the parties, the trial judges demanded from the ADDIS colleagues that they prove ‘ certain that Mr. SAVIO participated in the losses and profits of the de facto company ‘, to add that no accounting document made it possible to verify that Mr. SAVIO received remunerations other than his wages or that he kept by to him receipts; that thus, the trial judges demanded, not the willingness of the parties to involve Mr. SAVIO in losses and profits, but an effective participation in losses and profits; that the judgment was therefore rendered in violation of article 1832 of the Civil Code and of the rules governing de facto companies.

SECOND MEANS OF TERMINATION

The contested judgment incurs censorship.

IN THAT he refused to consider that there had been a de facto company created between the ADDIS consorts and Mr. Yves SAVIO, for the operation of a boat, and consequently to reject the requests made by the ADDIS consorts against M. SAVIO;

FOR THE REASONS THAT if it results from the parts that the situation envisaged by Mr. ADDIS, before his death, and Mr. SAVIO, did not occur, on the other hand, Mr. SAVIO resumed his functions, after the death of Mr. ADDIS, and received the widest powers from Ms. ADDIS to manage the vessel, both technically and commercially, Mr. SAVIO even received power of attorney on Ms. ADDIS ‘bank account to pay the suppliers; that this situation and the fact that Mr. SAVIO has deployed, in the interests of the ADDIS consorts, much more effort than is required to do a salaried captain may give rise to the presumption that the latter has made contributions in the industry and had an affectio societatis; what else must we prove with certainty that Mr. SAVIO participated in the losses and profits of the alleged de facto company in order to legally establish its existence; that no accounting document makes it possible to verify that Mr. SAVIO has received remunerations other than his wages or that he has retained by him part of the receipts which he was responsible for collecting; that the certificate produced by Ms. ADDIS’s chartered accountant according to which there would have been a sharing of the profit, is most suspect and insufficient to establish this sharing, because not supported by the slightest proof of the payments which, given their importance , should have, if they existed, left traces on Mrs ADDIS ‘bank account; that the frauds committed by Mr. SAVIO, as a salaried captain, due to insufficient declarations of the number of passengers are established but that it is not certain that he derived a personal benefit from these frauds and that all of the partially defrauded revenue was not handed over to the ADDIS consorts; that, moreover, Mr. SAVIO was the subject of a personal tax audit during 1989, the last year in which he was in the service of Ms. ADDIS, and that this audit did not give rise to any adjustment that could lead to the assumption that that he personally benefited from the frauds evoked above and which did not involve a tax adjustment that for only Mrs. ADDIS;

ALORS THAT, FIRST, and with regard to the will to participate in the losses, the trial judges had to investigate in particular, if the fact for Mr. SAVIO to accept drafts drawn jointly on Ms. ADDIS and himself (conclusions served on July 13, 1993, p. 13, paragraphs 1 and 2, and conclusions served on April 11, 1997, p. 9, paragraph 4) did not reveal Mr. SAVIO’s desire to participate in the losses, the trial judges deprived their decision legal basis with regard to article 1832 of the Civil Code and the rules governing de facto companies;

AND WHEREAS, SECOND, in their conclusions of appeal (conclusions served on July 13, 1993, p. 8, 3 last paragraphs and p. 46; conclusions served on April 11, 1997, p. 5, paragraph 5, p. 6, paragraph 1, p. 6, penultimate paragraph and p. 10, paragraph 7), the ADDIS consorts maintained that there was no link of subordination between Ms. ADDIS and Mr. SAVIO, and that if the latter apparently perceived wages, the wages thus collected were fictitious; that by failing to find, in this case whether the sums collected by Mr. SAVIO under the abusive qualification of salary did not reveal the parties’ desire to have him participate in the profits, the trial judges again deprived their decision legal basis with regard to article 1832 of the Civil Code and the rules governing de facto companies.

THE COURT, composed in accordance with article L. 131-6, paragraph 2, of the Code of judicial organization, in the public hearing of April 18, 2000, where were present: Mr. Dumas, president, Mr. Métivet, advisor rapporteur, Mr Poullain, advisor, Mr Jobard, advocate general, Ms Arnoux, chamber clerk;

On the first plea and the second plea, taken in its two branches, combined:

Whereas the Addis consorts reproach the judgment under appeal (Aix-en-Provence, September 26, 1997) for having refused to consider that there had been a company, de facto created between them and Mr. Savio for the operation of a boat and having rejected the claims they made against it then, according to the appeal, on the one hand, that apart from the contributions and affectio societatis, the existence of a company de facto created simply assumes the willingness of the parties to share in the profits and losses; that there is no requirement that there be effective participation in the profits and losses; in the present case, after having admitted the existence of a contribution in industry on the part of Mr. Savio and of an affectio societatis between the parties, the trial judges demanded of them, that they prove ‘with certainty that Mr. Savio participated in the losses and profits of the de facto company’, to add that no accounting document made it possible to verify that Mr. Savio received remuneration other than his salaries or that he has kept receipts for himself; that thus the judges on the merits demanded, not the will of the parties to involve Mr Savio in losses and profits, but an effective participation in losses and profits; that the judgment was therefore rendered in violation of Article 1832 of the Civil Code, and of the rules governing de facto created companies; then, on the other hand, that with regard to the desire to participate in the losses, the trial judges had to examine in particular, whether the fact for Mr. Savio of accept drafts drawn jointly and severally on Ms. Addis and himself, did not reveal Mr. Savio’s desire to participate in the losses, the trial judges deprived their decision of a legal basis with regard to article 1832 of the Civil Code, and rules governing de facto companies; and then, finally, that in their conclusions of appeal they maintained that there was no link of subordination between Mrs. Addis and Mr. Savio, and that if the latter apparently received wages, the wages thus collected were fictitious ; that by failing to investigate, in the present case, whether the sums collected by Mr. Savio under the abusive qualification of wages did not reveal the parties’ desire to have him participate in the profits, the trial judges deprived their decision of legal basis with regard to

But given that, having a sovereign appreciation of the evidence submitted to it, the Court of Appeal, which found that it was not established that Mr. Savio received other remuneration from the Addis consorts than his salaries as captain of the boat, thereby showing that he was not participating in the profits of the operation and noted that Mr. Savio had received from Mrs. Addis, after the death of her husband, the broadest powers to manage the ship, both technically and commercially and had received her power of attorney on his bank account, which resulted in the facts invoked did not demonstrate that he was intended to participate in losses; that having thus carried out the research allegedly omitted it was able to rule as it did; of

FOR THESE REASONS :

DISMISSES the appeal;

Condemns the Addis consorts to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the Addis consorts to pay Mr. Savio the sum of 12,000 francs.

On the report of Mr. Métivet, adviser, the observations of Me Foussard, lawyer of the Addis consorts, of Me Cossa, lawyer of Mr. Savio, the conclusions of Mr. Jobard, general counsel, and after having deliberated in accordance with the law ; M. DUMAS, President.

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