The Court of Cassation makes several rulings regarding the status of merchants and the jurisdiction of commercial courts in various cases involving commercial acts and jurisdictional attribution clauses.
Extract
[...] - Does the resale of electricity from a domestic installation constitute a commercial operation determining the jurisdiction of the commercial court? The Court of Cassation quashes and annuls the judgment of the Court of Appeal, which had retained the competence of the commercial jurisdiction based on the sale of energy and the commercial accessory of the preparatory acts. By failing to investigate whether the installation was not primarily intended for personal use, the Court of Appeal deprived its decision of a legal basis. [...]
[...] The deed of assignment not being sufficient to characterize the exercise as a habitual profession, therefore the quality of merchant. Document n° 3 : Civ. 1ère February 2016, n° 15-10.735 A private individual concluded with a company a contract for the sale and installation of a solar photovoltaic generator financed by a loan of ?17,900 subscribed with a credit institution. The private individual brought an action for the resolution of the main contract and the accessory contract. The credit institution raised an exception of incompetence in favor of the commercial jurisdiction. [...]
[...] The Court of Appeal of Paris declares itself incompetent in favor of the court of Rennes, the clause is inopposable to the assignor, considered not a merchant. The assignee then files a cassation appeal which will be rejected. He argues that anyone who carries out commercial acts as a habitual profession is a merchant, under Article L 121-1 of the Commercial Code. The founding partner who participates in the operation of the company on a professional basis, who transfers control of it and signs a guarantee of assets and liabilities on the occasion of this transfer, must be considered a merchant. [...]
[...] The artisan had accepted a chain of letters of exchange related to the operation. The Grenoble Commercial Court rejects the artisan's exception of territorial incompetence (thus recognizing itself as competent). The artisan appeals, the Court of Appeal confirms the judgment of the tribunal. The artisan would have performed a commercial act (by the chain of transactions), the attributive clause would therefore be opposable to him, the material he acquired served the needs of his activity. The CA held that the artisan performed a commercial act by accepting the signature of a chain of transactions, so the attributive clause of competence related to the merchant is opposable to him. [...]
[...] He argues that only the quality of merchant allows the opening of a collective procedure, that the spouse is only considered a merchant if he exercises a distinct commercial activity or habitually intervenes. The Court of Appeal would not have characterized independent commercial acts as a habitual profession and would have inverted the burden of proof in this regard. - Under what conditions does the spouse of a merchant acquire the status of merchant, authorizing the opening of a collective procedure? [...]
