Commercial Leases/Business Goodwill

Can the distributor belonging to a network that operates its business in premises where it is a tenant claim commercial property, as provided in Articles L. 145-1 et seq. of the Commercial Code relating to commercial leases? The answer to this question has evolved over time. Initially, case law required that the franchisee have an independent clientele to claim commercial property and consequently …

Distribution network.

Can the distributor belonging to a network that operates its business in premises where it is a tenant claim commercial property, as provided in Articles L. 145-1 et seq. of the Commercial Code relating to commercial leases? The answer to this question has evolved over time. Initially, case law required that the franchisee have an independent clientele to claim commercial property and consequently benefit from the status of commercial leases . To do this, the distributor had to prove the existence of its own clientele linked to its activity independently of the attraction to the brand of its supplier, or demonstrate that the element of the business it brings, in this case, the leasehold right or location, attracted clientele in such a way that it prevailed over the brand . The distributor had to have economic and legal control over the essential elements of its business .

The case law then distinguished between the supplier's national clientele and the distributor's local clientele, while introducing the notions of “risk” and “peril” to describe the means implemented by the distributor to develop its own clientele. Approving the solutions reached by the trial court , the Court of Cassation established the principle that the distributor can benefit from the status of commercial leases as long as, if a clientele is nationally attached to the supplier's brand reputation, the local clientele, which exists only due to the means implemented by the distributor at its own risk and peril, is an integral part of its business . The benefit of the status of commercial leases is recognized for the distributor who operates a business belonging to it, as long as it assumes the risks of its operation and there is a clientele attached to its business through its know-how . However, if the franchisor cannot claim ownership of the clientele attached to the business operated by its franchisee , nothing prevents it, without being guilty of unfair competition, from freely soliciting it at the end of the contract, using the file it has compiled, to direct it to the new franchisee . Furthermore, since the distributor, as the owner of its business, develops its own clientele for its own account and in its own name, it cannot claim, when its distribution contract is terminated, the benefit of a clientele indemnity .

Finally, in the specific case where the franchisor has granted a commercial lease to the franchisee to operate its business under the franchise agreement concluded in parallel, the franchisor's decision to terminate this agreement does not result in the termination of the commercial lease, as the lessee and franchisee can still request the despecialization of the lease .

Judicial Court Evry, 9 December 1993, LawLex200200005359JBJ.

CA Paris, 6 February 1996, LawLex200200005534JBJ.

Judicial Court of Paris, 30 October 1998, LawLex200200005150JBJ.

Paris, 4 October 2000, LawLex200200006142JBJ and CA Paris, 4 October 2000, LawLex200200005323JBJ.

Cass. 3e civ., 27 March 2002, LawLex200200004694JBJ.

CA Paris, 3 July 2002, LawLex200200004312JBJ.

CA Nîmes, 5 May 2011, LawLex201100001049JBJ.

CA Rennes, 28 June 2011, LawLex201100001299JBJ.

CA Metz, 12 December 2007, LawLex200900001774JBJ.

CA Orléans, 19 March 2009, LawLex201000000843JBJ and Cass. 3e civ., 30 June 2010, LawLex201000000800JBJ, regarding a franchise agreement related to the sale of cosmetics, perfumes, and beauty care products, under the franchisor's brand.

Commercial Leases/Business Goodwill

31. Distribution network.

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

31. Distribution network.

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise