Article published in Le Monde du Droit: http: //lemondedudroit.fr/decryptages-profession-avocat/197296-le-juge-des-referes-peut-contraindre-un-partenaire-commercial-a-executer-son-contrat-jusqua-son-terme-tc-montpellier-ord-ref-18-juillet-2014-inedit.html
Few litigants dare to bring an application before the interim relief judge to force performance of a contract through to completion, no doubt for fear of seeing such an application rejected by the judge of obviousness.
Few litigants dare to bring an application before the interim relief judge to force performance of a contract through to completion, no doubt for fear of seeing such an application rejected by the judge of obviousness.
However, this is the solution adopted by the President of the Montpellier Commercial Court on July 18, 2014: even in the presence of a serious dispute, the interim relief judge is competent to compel a commercial partner (in this case, a franchisee) to perform its (franchise) contract to its term when, as in this case, the existence of a "manifestly unlawful disturbance" within the meaning of article 873 of the CPC is characterized. Such a solution has been accepted on the rare occasions when it has been requested, notably in the case of a supply contract (CA Caen, Oct. 10, 2013, Juris-Data n°2013-023545) or a remote surveillance contract (CA Paris, January 21, 2009, RG n°08/15864, unpublished).
In the case under review, a franchisee had notified the franchisor of his unilateral decision to terminate the fixed-term franchise agreement early, and was consequently preparing to sell the brand. This notification had not been preceded by any formal notice, and did not contain any grievance. The franchisor also added that, even in the presence of a serious dispute, the interim relief judge was obliged to rule on the existence (or not) of such a disturbance (see Cass. com., June 7 2006, pourvoi n°05-19.633). The interim relief judge upheld the franchisor's claim, after finding that the "manifestly unlawful disturbance" consisted of "the sudden disappearance of (the franchisor's) signs" and "financial loss due to lost franchise and advertising fees". This decision has not been appealed.
Early termination of a fixed-term contract may constitute a manifestly unlawful disturbance, the existence of which is left to the discretion of the interim relief judge, who may order that the contract continue until its term.
François-Luc Simon, Lawyer Managing Partner Simon Associés
Doctor of Law
