The University of Texas at Austin   School of Law

Main menu:

Case:
Com. & Fin. No. 86 Case Société Affichage Giraudy v. Cazauran Application for Review No. 67-12.782
Date:
04 March 1970
Translated by:
J T Brown
Copyright:
Professor B. S. Markesinis

THE COURT……

Concerning the first ground:

Given that the judgement under attack (Pau, 22 Mat 1967) held that, from 1 January 1957 to 18 April 1966 there existed a commercial company created “de facto” between Affichage Giraudy, a corporation, and Mme. Brisson, and ordered the liquidation of this company;

(………………)

Concerning the third ground, taken in its three limbs:

Given that the Court of Appeal is further criticised for having held that the contract entered into on 4 September 19547 between Giraudy and Mme. Brisson, which expired on 1 January 1957, amounted already to a “de facto” company while (i) it does not at all flow from the contract, distorted by the Court, that Mme. Brisson had contributed a business (“fonds de commerce”), and in particular goodwill (“clientèle”), but only publicity sites (ii) the Court has not shown that Mme. Brisson was to share in losses of the venture, the contract, here again distorted, being mute on this point; and (iii) the judgement under attack has found no fact which is apt to show that the parties were driven by the desire to work actively together in order to make profits in common;

But given on the one hand that (i) the contract of 4 September 1954, duly produced, provides: “Affichage Giraudy has in its possession at Bayonne a certain number of sites….Mme. Brisson has been granted the right (“concession”) relating to municipal advertising of the town of Bayonne until 1 January 1957; the two parties have agreed to exploit this group of assets in common”; (ii) the judgement under attack, having found that before the contract Mme. Brisson, who was duly registered in the Register of Commerce and paid the business tax (“patente”), exploited by herself the municipal sites, has committed no distortion in holding that, by the contract, Mme. Brisson contributed her business (“fonds de commerce”) made up of her goodwill (“clientèle”), her customers (“achalandage”), her premises and her services and that, for its part, Giraudy put in common its publicity sites its organisation and its considerable means;

Given on the other hand that (i) the contract provided for “a profit and loss account (“compte d’exploitation”) for all the Bayonne sites” to which would be credited all receipts of whatever nature and to which would be debited the expenses, the balance being “the trading profit which would be shared as to 50% between each of the parties”, Mme. Brisson being entitled to draw a monthly sum of 75,000 old francs by way of advance against her share, “which sum would be debited to the account of Mme. Brisson, would not be considered as a debt of the association if the accounts should show a deficit, and would belong to Mme. Brisson in that case”; (ii) in finding “the question of the share of losses was also dealt with, by limiting this, in favour of Mme. Brisson, to a fixed amount of 75,000 old francs”, the Court of Appeal, which adds that the disproportion in the liability for losses can be explained by the initial advantages brought to Giraudy by Mme. Brisson, has not distorted the contract;

Given finally that the Court of Appeal deduced from both the terms of the contract and the circumstances of the case that the parties clearly manifested their intention to form an association by putting into common use certain contributions (“apports”), sharing profits and losses, and showing a “wish to work together in order to make profits”; the Court thus had the absolute right to find an intention on the part of the parties to become equal partners;

From which it follows that the ground is unfounded in all its limbs;

On the fourth ground, taken in its four limbs:

Given that the judgement under attack is criticised for having found that upon the expiry of the contract of 4 September 1954, that is to say as from 1 January 1957, a “de facto” company (“société de fait”) continued to exist between the parties while (i) none of the elements found by the Court of Appeal to exist allow it to be seen whether Mme. brisson, manager of the Bayonne branch, had made any contribution (“apport”) or whether she had the duty to bear any losses; (ii) the Court of Appeal has distorted the pleadings of Giraudy by stating that the latter had maintained that the manager benefited from a mere employment contract; (iii) further the Court of Appeal could not, without self-contradiction, find that the manager was under the obligation to obey the orders of Giraudy and, at the same time, say that she was driven by “affectio societatis”; and (v) none of the facts found as presumptions by the Court of Appeal establishes the combination of the legal elements of a contract forming a company;

But given that (i) the judgement finds that upon the expiry of the contract of 4 September 1954 “ Mme. Brisson made no attempt to take back the commercial assets she had contributed…” and that, as from 1 January 1957, “the fixed share of losses to be borne by Mme. Brisson had been reduced to 50,000 old francs per month” (ii) contrary to the claims of the Application for Review the Court of Appeal has in this way indicated the existence of a contribution made by Mme. Brisson and the agreement of the parties as to the share of debts which if need be she could be made to bear;

Given that (i) notice need not be taken of the reason, mistaken but superfluous, by which the judgement, stated that, according to Giraudy, the latter was bound to Mme. Brisson by a contract of employment, while that company claimed that the parties had entered into a contract of salaried agency; (ii) nothing contradicts the Court of Appeal when it states “that apart from general directions and critical supervision by Giraudy, no document and no correspondence contains a firm order accompanied by instructions to carry it out… by reason of the independence retained by Mme. Brisson in the conception and the execution of her functions; the latter had retained a right to check the accounts of Giraudy”;

Given that (i)it follows from the reasons set out above that the Court of Appeal’s findings based on the several elements of fact examined by it establish the existence of a contract for the formation of a company; and

(ii) the ground is not better founded in any of its limbs than the earlier ones;

FOR THESE REASONS REJECTS…..

Back to top

This page last updated Thursday, 15-Dec-2005 09:05:51 CST. Copyright 2007. All rights reserved.