The Court of Cassation revisits the definition of a commercial act, emphasizing profit intention and applicability to non-merchants.
Extract
[...] Court of Cassation, Commercial Chamber November 2022, No. 21-18.290 - Under what conditions can an act performed by a non-merchant be considered a commercial act? - Introduction and detailed plan The Commercial Chamber of the Court of Cassation in this decision dated 23 November 2022 revisits the qualification of a commercial act concerning the regimes of movable goods in order to determine the applicable law to the situation presented to it. In this case, an individual entered into a contract with a company for the installation of photovoltaic panels financed by a loan that he had taken out from a bank. [...]
[...] No information was provided to us about the decision given in first instance. The Court of Appeal of Nîmes in a decision rendered on 4 July 2019 held that the contracts concluded with the company for the installation of photovoltaic panels and the bank are 'commercial acts not subject to the provisions of the Consumer Code'. The heirs then formed a cassation appeal presented in a single means taken in two branches, reproaching in their means taken in their first branch to the court of appeal of having violated article L. [...]
[...] In a judgment of 23 November 2022, the Court of Cassation dismissed the appeal, recalling that under Article L. 110-1 of the Commercial Code, 'any purchase of movable property for resale, either in its original form or after processing and working', is deemed to be a commercial act, stating that the sale of electricity may fall within this classification, the production capacity of the photovoltaic panels exceeding the threshold corresponding to the consumption of a private individual, thus inducing a necessary resale of the electrical energy produced, constituting a commercial activity. [...]
[...] The qualification of a commercial act by the intention of the contracting party The search for a profit, a sign of commerciality - Reminder on the question of the contracting party's will at the time the contract is signed, obviously if there is a search for profit then there is a will of commerciality + article of civil code stating the will of the parties at the time of the contract signature The intention of commerciality submitted to the definition of the commercial act - regimes of movable goods: L110-1 « All purchases of movable goods for resale, either in kind or after having worked and put them into operation », there are two operations the purchase and the resale and there is a necessary link between the two which is intentional, we must have the intention to resell II. The application of commercial law to the non-merchant A. The applicability of the designation of a commercial act to a non-merchant - Recall of the jurisprudence of 13 May 1997 recalling that An act performed by a non-merchant becomes a commercial act when it is passed with the intention of exercising a trade and is indispensable to the exercise of that trade » - Recall definition of a merchant B. [...]
