Given that after making his surgery available to his colleague, M. Sigrand, thereby creating a partnership of assets, M. Woessner subsequently, by contract of 15 May 1991, transferred half of his list of patients to M. Sigrand against a promised payment of 500,000 francs, and also undertook, by a “guarantee of fees”, that M. Sigrand would receive a minimum number of fees per annum; that M. Sigrand, having paid part of the agreed sum, is now of the view that his colleague is in breach of his undertakings regarding his patients and claims that the contract be declared void, while M. Woessner in his turn claims the payment of the balance of the sum agreed;

Given that the court below (Colmar, 2 April 1998) declared the contract void, ordered M. Woessner to repay the sums already paid by M. Sigrand and dismissed M. Woessner’s claim for the balance, M. Woessner criticises it first, for failing to draw the correct legal conclusions from its own findings, in breach of articles 1128 and 1134 Code civil, in that it declared the contract void on the ground that it affected the patient’s freedom of choice of doctor, whereas it followed from its own finding that the parties were bound under the contract to tell the patients that they had “a limited option of choosing between the two surgeons or a surgeon other than the one to whom he was sent by his general practitioner”, that the patient was entirely free to go either to M. Woessner or to M. Sigrand or to any other specialist, and that consequently there was no effect on his freedom of choice, and secondly that in failing to investigate the argument put to it, that in so far as the contract obliged M. Woessner to “present” M. Sigrand to his patients and to put at his disposal his surgical equipment, office facilities and means of communication, its object was in part lawful, so that there was a partial cause for M. Sigrand’s obligation to pay the sum agreed in the contract, the court’s decision was consequently not well based in law, considering articles 1128, 1131 and 1134 Code civil;

But given that when a practice for the exercise of a liberal profession is being created or transferred the transfer of the list of patients is lawful only if the patients retain their freedom of choice, and that the court of appeal was within its sovereign powers in deciding that this freedom of choice was not guaranteed by the arrangements in question and so justified its decision in law; from which it follows that the first criticism is ill-based and the second is irrelevant;

For these reasons, DISMISSES the application for review.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2004.

Civ 1, 7 November 2000, Bull no 283: This judgment marks an important reversal. Until then, the Cour de cassation had always considered that the clientele of the liberal professions, medical or otherwise, was outside the realm of commerce. By this judgment, the first civil chamber admits the legality [?] of such a transfer, on the condition nevertheless that in the case in question the patient's choice be preserved (a solution repeated by the judgment of the 19 November 2002, Civ 1, Bull no 277, in relation to the transfer of the clientele of a dental surgeon).

Translation by Raymond Youngs