Lexicon > Brutal rupture of commercial relations
IP Lexicon
When a commercial relationship is established, it may happen that at a given moment, everything does not go as planned due to the non-performance or contractual breach of one of the parties, thus obliging the other to break the relationship in a “brutal” manner.
The brutal rupture of a commercial relationship is the fact “to break off suddenly, even partially, an established commercial relationship, in the absence of a written notice that takes into account the duration of the commercial relationship, with reference to trade practices or interprofessional agreements. (art. L.442-1 of the Commercial Code).
A commercial relationship is defined as a relationship whose purpose is the provision of a product or service, regardless of the sector of activity.
Any natural or legal person who is not deontologically prohibited from practicing a commercial activity (e.g., lawyers or doctors) may enter into a commercial relationship, and consequently take advantage of the brutal rupture of established commercial relations.
The Commercial Code refers to all established relationships, whether pre-contractual, contractual or post-contractual.
In other words, it does not matter whether the final contract has been formalized, as long as the relationship exists and is clear between the parties. It is sufficient that there is a regularity, the significant character and the stability of these.
The form and duration of the contract is not important either.
The established nature of the commercial relationship is often presumed (CA Paris, June 20, 2019, No. 17/02742), as opposed to the abrupt nature of the termination.
The person who has broken off the contract must then demonstrate that the other party’s behaviour makes it impossible to continue the commercial relationship.
For example, the sudden drop in orders and turnover of the victim of the breach were deemed insufficient to justify the brutality of the breach (Cass.Com, March 27, 2019, No. 17-18.676).
The notice must inform the party to whom the breach is opposed of the clear and unequivocal intention not to continue the commercial relationship. If it is not provided for contractually, and in the absence of a specific provision in the French Commercial Code, the reasonableness of the notice period will be analyzed on a case-by-case basis.
The judges will take into account the duration of the commercial relationship, the customs of the profession concerned, as well as any applicable interprofessional agreements.
Point of jurisprudence
“In the case of the sudden termination of an established commercial relationship, the mere fact that a third party, having taken over the activity or part of the activity of a person, continues a commercial relationship that the latter had previously maintained is not sufficient to establish that it is the same commercial relationship that has continued with the partner concerned, if there is no evidence that such was the common intention of the parties.
Cass.Com, February 10, 2021 / n° 19-15.369
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