Mandate of common interest:
The mandate of common interest is a praetorian creation that appeared in the nineteenth century.1. A mandate is of common interest when the contract that is concluded is of interest to both the principal and the agent.
There is a mandate of common interest when there is “interest of the principal and the agent in the growth of the company through the creation and development of customers” (Cass. com., 20 Feb. 2007, No. 05-18.444, JurisDataNo. 2007-037690; Cass. com., 8 July 2008, No. 07-12.759; Cass. com., 24 Nov. 2009, No. 08-19.596; Cass. com., 29 Feb. 2000, No. 97-15.935, JurisData No. 2000-000750).
The mandate of common interest has tempered the principle laid down by Article 2004 of the Civil Code according to which the mandate is freely revocable (revocable ad nutum).
The mandate of common interest is therefore not revocable by the will of only one of the parties.
The revocation is indeed subject to “a consent of both parties or to a cause recognized in court, or finally according to the clauses of the contract” (Cass. com., 3 July 2001, No. 98-16.691; Cass. com., 6 July 1993, No. 91-15.469; Cass. com., 3 June 1997, No. 95-11.450; Cass. com., 18 Jan. 2000, No. 97-21.368).
If these conditions are not respected by the principal, compensation is automatically due to the agent, except in the event of legitimate cause of revocation, that is to say in the event of fault of the agent
The legislator has enshrined this praetorian construction for commercial agents by establishing the principle that “contracts between commercial agents and their principals are concluded in the common interest of the parties” (C. com., art. L. 134-4, para. 1st).
The revocation of the commercial agent contract without compensation is however subject to serious misconduct by the commercial agent (C. com., art. L. 134-13).
2. The distributors, in particular the franchisees, claimed the benefit of an end-of-contract indemnity similar to that granted to the agent in the mandate of common interest and to the commercial agent.
If the Doubin law of 31 December 1989 qualifies as contracts of common interest, “contracts by which a person makes available to another, a trade name, a brand or a sign, requiring an exclusivity or quasi-exclusivity commitment for the exercise of his activity”, the case law refuses to extend the regime of the mandate of common interest to other contracts having the same character and confines this regime to agency contracts: “the common interest in the development of two companies not bound by a mandate contract has no impact on the conditions of the cessation of their collaboration” (Cass. com., 8 Jan. Bull. civ. 2002, IV, No. 1).
Indeed, unlike the agent, the dealer or franchisee is an independent trader. Legally, it retains its own clientele upon the termination of the contract, even if, in fact, the clientele will continue to follow the brand it represented (Cass. com., 20 Nov. Bull. civ. 1979, IV, No. 298; Cass. 3rd civ., 27 March 2002: JCP G 2002, II, 10112, note F. Auque; D. 2002, act. jurispr. p. 1487, obs. E. Chevrier; D. 2002, act. jurispr. p. 2400).
The trial judges refuse to find a misappropriation of customers on the part of the licensor (Cass. com., March 9, 1976: Bull. civ. 1976, IV, No. 90; Cass. com., 20 Nov. Bull. civ. 1979, IV, No. 298) and hold that the concessionaire necessarily accepted, at the time of the conclusion of the contract, the risk of loss of clientele (Cass. com., 9 July 1952: RTD com. 1953, p. 720, obs. J. Hémard; Cass. com., 13 Nov. Bull. civ. 1972, IV, No. 286).
