Extract
[...] The contract was for the manufacture of 150 plant fiber covers for touch tablets, to be delivered before June The contract specified the exclusivity of the sale in the store for a period of 2 months, as well as an advance payment of 30% upon order. However, upon receipt, the delivered covers are in the format of a smartphone, and therefore unsellable in the context of the planned operation. Mr. Le Guen is considering taking legal action against Ms. Kerbrat for contractual non-performance. He specifies that he has written proof of the order content, as it is recorded in his accounting books, within his stock management software, which explicitly mentions the '150 tablet covers 10 inches'. He is questioning you on several points: 1. [...]
[...] Le Guen rely on his accounting books to prove the content of the order placed with Mrs. Kerbrat, who is not a merchant? As a preliminary matter, it is first necessary to ask whether Mr. Le Guen is a merchant. According to Article L. 121-1 of the Commercial Code, those who carry out commercial acts and make it their usual profession are considered merchants. Case law adds a third condition that the commercial activity be carried out with complete independence (Cass. com., October No. 89- Cass. com., March No. 91-11.560). [...]
[...] According to this text, commercial courts have jurisdiction, in particular, over disputes related to commercial companies. In addition, SARLs are commercial companies by their form (L210-1 al.2 com.) In this case, it has been demonstrated that Mr. Le Guen is a merchant. If Mrs. Kerbrat directed a SARL specializing in this activity, this would make the previously civil act commercial by the form of the one who performs it. This would have the effect that the commercial law regime would apply to Mrs. [...]
[...] Kerbrat contracted the supply contract with her husband who orally committed, thereby also engaging the latter, they are thus both co-debtors of a debt. In addition, this debt is related to a creation of movable goods for resale, it is necessary to note that this act is necessarily commercial, even if they are not traders. In conclusion, since the two conditions of commercial solidarity are verified, Mr. Le Guen should be able to demand the full payment of the price from either of the spouses presumably held jointly. [...]
[...] The list of the twelve commercial courts renamed TAE is indicated in article 2 of the decree of July 2024. In this case, Mr. Le Guen, a merchant, wishes to bring an action against a non-merchant. Therefore, he will necessarily have to act before the Judicial Court. B/Territorial Competence In principle, according to Article 42 of the Civil Procedure Code, the territorially competent jurisdiction is, unless otherwise provided, that of the place where the defendant resides. In this case, the jurisdiction of the defendant's domicile is competent but is not mentioned in the statement. [...]
