Extract
[...] Court of Cassation, Commercial Chamber January 2022, n°20-16.782 - In their implementation of Article 171 of the Civil Code relating to membership contracts, how did the judges assess the significant imbalance? - Introduction and detailed plan Cass. com January 2022, n°20- 16782 - Abusive clauses The Commercial Chamber of the Court of Cassation, in its judgment of cassation, published in the Bulletin and rendered on 26 January 2022, was able to clarify, in the event of significant imbalance, the applicable texts to the dispute. [...]
[...] Due to unpaid rents, the company LOCAM declared the company GREEN DAY in default, requiring payment. In addition, it invoked the rescission clause stipulated in their contract at Article 12a. Later, the creditor company sued GREEN DAY for payment. Following a decision rendered in the first instance, an appeal was lodged. The Lyon Court of Appeal then ruled in a judgment of 27 February 2020. [...]
[...] Finally, according to her, the sanction of the reputed non-written is only applicable to the prohibited stipulation and not to the entire Article 12. The question to which the judges attempted to respond is the following: In their implementation of Article 171 of the Civil Code relating to membership contracts, how did the judges appreciate the significant imbalance? The Commercial Chamber of the Court of Cassation rendered a partial cassation judgment on January Based on Article 1171 of the Civil Code and the parliamentary works mentioned, it judges that "Article 1171 of the Civil Code, interpreted in the light of these works, therefore applies to contracts, even concluded between producers, merchants, industrialists or people registered in the trades register, when they do not fall within the scope of Article L. [...]
[...] It will be necessary to focus first on the expansion of the scope of application of Article 1171 of the Civil Code before analyzing in a second time, the assessment of significant imbalance by the supreme judges (II). The scope of application of Article 1171 of the Civil Code, expanded The principle that special laws derogate from general ones - Principle: special laws derogate from general laws - In this case, the conflict arises from the articulation of a general text (Article 1171 of the Civil Code) and special texts (Article L442-1, 2° + L442-6 of the Commercial Code + Article L212-1 of the Consumer Code) - Logical/coherent/evident principle but complexity for the litigant The rejection of the application of the principle by the supreme courts - Refusal of application of the aforementioned principle by the judges - Justification: Article 1171 of the Civil Code application of the article (even to contracts concluded between pro) to only contracts that do not fall under Article L442-1, 2° - Interpretation in the light of parliamentary works and virtue of the legislator's intention II- The assessment of significant imbalance The lack of reciprocity not justifying an imbalance - Definition of significant imbalance - Position of the appeals court that violates article 1171 of the civil code - According to the Court of Cassation, the sanction = the unwritten A necessary clarification brought - Numerous solutions rendered as to the clarification of the articulation of the aforementioned articles (e.g. [...]
[...] On the one hand, it deemed Article 12 of the general conditions of the contract unwritten. On the other hand, and in continuation, it judged that the non-terminated lease contract continues until its term. A cassation appeal was lodged by the company LOCAM. In support of its appeal, it criticized the judges of the first instance for their application of a common law text, namely Article 1171 of the Civil Code, in place of a special law text, namely Article L442-6 I 2 of the Commercial Code. [...]
