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Case:
Civ. 3:Bull. 2002 III No. 77 P.66 Application for review no., 00-20732 Case Trévisan v. Basquet
Date:
27 March 2002
Translated by:
J T Brown
Copyright:
Professor B. S. Markesinis

THE COURT….

Concerning the first ground:

(…….)

Concerning the second ground:

Given that the Trévisan spouses criticise the judgement under attack for having allowed the claim of the Basquet spouses, while, according to the ground:

(1) (i) if a tenant to whom a franchise has been granted is to have his own business (“fonds de commerce”) he must show either that he owns goodwill (“clientèle”)which is linked to his personal activity independently of the attraction deriving from the name of the franchisor, or that the element of the business (“fonds”) which comes from him namely the commercial lease, attracts clients in such a way that it prevails over the name; (ii) the Court of Appeal limited itself to finding in a general way that the franchisee, whose rights are now devolved upon the Basquet spouses, held, in respect of the constitutive elements of his business (“fonds”) the right of “abusus”, even though the close personal links (“intuitu personae”) necessary for the performance of a contract of franchising had led the parties to stipulate for the benefit of the franchisor a right of approval or of first refusal in the case of a sale of shares of such a nature as to change the proportions of the shareholders without enquiring or discussing how the franchisee had goodwill (“clientèle”) which arose from his personal activity independently of the attraction of the name of the franchisor, or how the element of the business (“fonds”) which he provided, the commercial lease, attracted clients to such an extent that it outweighed the name; in so finding the Court of Appeal breached Article 1 of the Decree of 30 September 1953;

(2) (……)

But given that, having rightly found that, (i) on the one hand, while from the national point of view goodwill (“clientèle”) is attached to the notoriety of the name of the franchisor, locally goodwill (“clientèle”) exists only by reason of the means employed by the franchisee, among which are the corporeal elements of his business (“fonds de commerce”), the equipment and stock, and the incorporeal element which is the lease (ii) this goodwill (“clientèle”) is itself part of the business (“fonds de commerce”) of the franchisee, since, even if he is not the owner of the name and the trade mark put at his disposal during the performance of the contract of franchise, it is created by his activity by means which he exploits at his own risk, since he contracts personally with suppliers or lenders, (iii) on the other hand the franchisor recognised that the Basquet spouses had the right to dispose of the elements which made up their business (“fonds de commerse”), the Court of Appeal rightly deduced that the tenants had the right to claim the payment of an indemnity for eviction, and for these reasons alone, justified in law its decision on this point;

Concerning the third ground:

(….)

For these reasons

REJECTS the Application for Review

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