Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 900

NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)

Exhibit 38

THE ASSOCIATION AND CONTRACT
IN THE RECENT SUPREME COURT CASE LAW
by Yves Chartier
Law Schools Graduate [Agrégé]
Honorary Counsel to the Supreme Court
To speak of an association as a contract could seem redundant, since the definition such as
outlined in Article 1 of the July 1, 1901 law uses the term of “convention” it its regard, and since
it is ruled, regarding its validity, by the “general legal principles applicable to contracts and
obligations.” In keeping with approved case law, a June 25, 2002 decision1thus approved a Court
of Appeal for having “correctly reminded that statutes rule among parties, and contractual
freedom give the latter leisure to decide on statutes content.” The contractual nature of
associations is even more emphasized than that of companies, since, whereas there are oneperson companies, such is not the case at present when it comes with associations, unless at
times it becomes so de facto, which would explain a recent government response stating that the
reduction of the members of a particular association down to one member would cause the latter
to be immediately and fully legally dissolved.2
This issue seems all the more redundant, seeing that legal rules concerning associations are well
defined by extensive legal writing, part of which are by the person to which these pages are
dedicated. Litigation, which only deals with legally registered associations, although the lack of
legal status3 does not mean the lack of legal statutes binding the members, is by nature restricted
by the fact that, when it deals with a contract, most disputes do not fall under the jurisdiction of
the Supreme Court. In most decisions, the latter often reminds one that the interpretation of
statutes is sovereign, and their denaturation cannot be brought up in case of the ambiguity of a
particular clause4, which is a basic principle applying to quashing with regards to contracts.
This study, which aims at analyzing civil Supreme Court case law, that is basically the case law
of the last ten years, actually only finds two justifications. The first one is that it makes sense,
when it comes to the genre including the “Mélanges” to remain close to the preoccupations of the
person for whom they are written. The second one is that if, in the Monthly Supreme Court
Newsletter, the “association” item is skeletal – which is remarkable and actually quite satisfying
given the success of such items – it has nonetheless been, even if quite succinctly, been
expounded upon in the last several years, which would justify attempting at finding a common
thread. And it could be of interest in that regard, to examine how case law solves the conflicts
submitted to it.

1

1st Civ., July 25, 2002, D. p. 2359, Y. Chartier note; Gdz. Pal., Dec. 2002, p. 8, concl. 
Min. Answer, No. 19256, JCP 2000, E., p. 392; Corporate Law 2000, No. 84. 
3 st
1 Civ., Nov. 2, 1994, Newsl., I, No. 309; May 5, 1998, Newsl., I, No. 159; Corp. Law, 1998 No. 112, Th.
Bonneau’s note; see however, in the case of an association having a legal personality prior to the July 1, 1901 Law:
1st Civ., Jan. 15, 1991, Newsl., No. 14. 
4
See for instance S.C., 1st Civ., March 14, 1995, Civ. News., I., No. 121; Oct. 15, 1996, Civ. Newsl., I., No. 348:
“But since the interpretation of an association’s statutes by the trial judge is sovereign, unless denaturation…;” 1st
Civ., July 1, 1997, Newsl., I, No. 216; March 2, 1999 Newsl., I, No. 69. 
2

There is one main observation: in application of the principle mentioned above, Supreme Court
refers to the association contract. This leaning on statutes to solve disputes is certainly much
more frequent in this particular matter than it is in the related corporate law: the difference is
easily understood if one considers that this law dates from the beginning of the preceding
century, a time where things were simpler, and when legislators only touched on principles,
when, no matter what the importance of a contract in the latter legal matter (and as very well
emphasized by Prof. Guyon) regulations itself, most often of a public nature, plays a large part.
This is not to say though that all association disputes are centered around the implementation of
the contract which binds its members. This legal structure can be seen nowadays used in
connection with other contracts, especially in business law. When affiliation to a given
association is linked to another contract, it is then best to combine the implementation of two
contracts, the latter on one hand, and the association’s statutes5 on the other hand: we will see
how, on that point, case law has been called, according to the case, to give precedence either to
one or to the others. But above all, mainly in two areas, other considerations prevail, which deal
less with the notion of contract than with that of freedom.
The first one, which led the Supreme Court to rule by plenary session on February 9, 20016,
touches on the freedom not to join, from which one can infer that the convention requiring such
is therefore null and void. In the present case, short of a contract imposing the buyers of a
building in a subdivision to conjunctly join a sporting club – and some jurisdictions had seen
such obligation as legally sound – the Supreme Court ruled, in view of Article 4 of the 1901
Law, that “safe for cases where the law decides otherwise, no one is required to join an
association governed (by such law)." Still, one can interpret this decision as illustrative of
contractual freedom7, even though, beyond such obvious interpretation, what we are dealing with
is the asserting of a “human right8,” and of whether the freedom not to join, through the
consequences that its opposite could bring in the case of a democratic crisis, seems like an
essential tenet of freedom, as seen from a public law point of view. We will simply point out -however that is technically not within the 1901 Law framework -- that the joining of a union
bound to a real estate acquisition, as long as it is required by the project specifications9, is
another matter, due to its nature and subject.
The second item which does not belong in part to a contract is that of the analysis of the cause or
of the object of an association, when it comes to the licitness, since freedom of associations finds
its natural boundaries (1901 Law, Art. 3) when it goes against basic laws and good morals, with
such notions, although expressed differently, underlying Article 11 of the European Convention
on Human Rights. Of course, the subject and the cause are elements of the contract, the subject

5

Regarding the assembly which subordinates in corporate law the quality of associate to a membership to an
association, refer to Y. Guyon, Contract Treaty, Corporations, Statutory Arrangements and Covenants between
Associates, 4th Ed., No. 93 
6
Newsl., Plen. Ass., No. 3; Inf. News. S.C., March 15, 2001, Guérin concl., Sempère’s note; Corp. Rev., 2001, p.
357, Y. Guyon’s note. 
7
In this sense, see obs. Y. Guyon, regarding S.C. 1st civ., May 15, 1985, Corp. Rev. 1986, p. 457, Order not
published to the Newsletter. 
8
In this sense, E. Goté, note under 1st Civ., Feb. 23, 1960, D. 1961, p.55 
9
Civ. 3, Dec. 3, 1997, Newsl., III, No. 212; Of Corporations, 1998, No. 38, Th. Bonneau’s note. 

being itself defined within the statutes. And, through a recent Order,10 the First Civil Division
based itself specifically on the subject which resulted from the statutes in order to rule an
association lawful, and quash the order from a Court of Appeal which, upon the Prosecutor
General’s request, had rule that the only goal in forming the association was for its creator to
express personal opinions regarding historical and political facts, pointing out that “the
association whose sole stated purpose is to file a law suit does have a legal subject to it.” But, in
this Order, which can indeed call for qualifications, the Supreme Court situated itself upstream,
at the point of the existence itself of the subject, thus avoiding to rule on it true content. The
subject, such as it stems from the statutes, can potentially suffice to prove a particular
association’s licitness. Such hypothesis is however quite out of the ordinary. However, a case
law which in order to rule on such licitness drops the considering of the statutory subject so as to
seek the true activity is a bit more common, albeit also not very frequently so. Thus, in an Order
dated February 23, 197211, the First Civil Division stated that “it is of little importance that the
association’s statutes would have assigned to it other goals of an illegal nature, so long as its
main goal is illegal in nature, and it also suffices for its voiding that during the course of the life
of an association, it would have been diverted from its original goal, the moment its goal became
illegal.” The main item to note here is that it is no longer the social treaty which binds the
members of an association, but how its leaders utilize such association. If, in the file entitled
“Surrogate Mothers,” in order to approve a Court of Appeal in its voiding of the association
“Alma Mater,” the First Civil Division12 referred to the illegal subject of this association, which
was to facilitate the conclusion and execution of void conventions, it also used the “activity of
the association” as an argument. Another Order13, regarding an osteopathic syndicate with
association status, faulted a Court of Appeal for not having drawn the legal consequences it
stated “regarding the role played by the syndicate.” This taking into account of the situation of
fact is easily explained the moment the question is less to assess members’ relationships than to
assess whether there is indeed injury to the law and order. More recently, regarding associations
for the defense of certain types of hunting, the First Civil Division, by an October 16, 2001
Order, in order to reject an appeal against an Order which had pronounced its dissolution,
approved the Court of Appeal for having “noted, in its legal assessing of the situation, that
should the first apparent subject of the association can be seen as illegal, it appeared that in
reality (the latter) had developed an illegal essential activity which therefore constituted its true
object.”
14

This priority given to the activity performed, compared to the statutory object, is found again
when one must determine whether it is economical or commercial in nature, and to draw the
consequences15. Of course, the reference to the statutes usually suffices to settle the debate. Thus,
in making reference to it, in order to note, regarding the implementation of Article L. 311-3 of
the Consumption Code, that a particular association held a professional activity, it was “noted
that the association’s object was the teaching of the guitar, that statutes stipulated remuneration
of the teaching16.” But, inversely, in order to reject an appeal against an Order which had ruled

10

1st Civ., xxx 2001, Newsl., No. 91; Of Corporations, 2001, No. 107, Th. Bonneau’s note. 
Newsl., I, No. 57. 
12 st
1 Civ., Dec. 13, 1989, D. 1990, 273, J. Massip Report; JCP, ed. G. 1990, II, 21526, A. Sériaux’ note. 
13 st
1 Civ., June 29, 1994, Newsl., I, No. 231. 
14
Newsl., I, No. 255; JCP, 2002, ed. G, I, No. 10022, Y. Chartier’s note. 
15
See for instance S.C.., March 4, 1992, Rev. Corp., 1992, p. 766, S. Castro’s note. 
16 st
1 Civ. March 23, 1999, Newsl., I, No. 106; Corp. Law, 1999, No. 109, Th. Bonneau. 
11

that a particular association held an economical object according to Article 96 of the July 13,
1967 Law, the Chamber of Commerce17 based itself on the findings of the Court of Appeal
which had noted that this association, created in order to “create, supply and manage recreation
centers” had in fact held activities linked to the organizing of trips, findings which led to the
conclusion that “the association had given services comparable to that of a travel agency through
the resources made available to them by the subscriptions of its members.” On this matter of
activity, the Supreme Court has in reality a very concrete approach, and its only using entirely
rational reasoning that, in the case of discrepancy between text and reality, that it gives
prevalence to the latter.
Bearing in mind the above qualifications, a contract is indeed at the essence of case law when it
comes to associations. A contract means, first and foremost, its statutes, to which an internal set
of by-laws can be attached, which can however only have lower status18, and regarding which
recent case law helps specify the consequences it draws on various points. But, regarding the fact
that an association is a contract, the Supreme Court was called, in the absence of statutes, to
apply a broader law, the obligations law, also termed groups law, which is progressively taking
shape.
In terms of statutes application, the Supreme Court recently made outstanding progress in that it
extended it upwards, to the level of the subscription of its members, thus widening the realm of a
law which was already obvious during the life of the association, relevant to its members as well
until they left it, voluntarily or involuntarily.
Whereas the February 9, 2001 plenary session had asserted the right not to belong to an
association, the question was to know whether inversely there existed a right to belong. Of
course, it was never contested that a given association could stipulate requirements and
conditions for its applicants. But what was the situation for statutes not bearing restrictions?
Through its April 7, 198719 Order, the First Civil Division had dealt with the case of a woman
whose request to belong to a musketry club had been turned down. Basing herself on the
contractual freedom principal to which an association contract is bound, she had noted, in order
to approve of the Court of Appeal who refused to condemn the refusal, that “in the absence of
such provisions binding in this regard, the members’ free will needed to be applicable to the
association. “ This was tantamount to asserting an almost discretionary law. In a true reversal of
case law, the same Division took a contrary position in its rushed Order of June 25, 200220. In
the present case, the statutes of a particular association stated that “are considered members of
the association the persons who become members by a personal written registration and who pay
their yearly membership.” Someone had sent in the membership form along with a check. It was
argued in the Supreme Court, in order to quash the Order of the Court of Appeal which had
acknowledged the validity of the membership, that the trial judges had thus ignored “the
principle of freedom of membership and its corollaries,” the corollaries consisting here of the
existence of an alleged freedom to refuse a membership, as indeed implied in the 1987 Order.

17

Com., July 6, 1993, Newsl., IV, No. 290. 
Comm, see however Court of Appeal of Paris Order dated December 17, 1996, and Th. Bonneau’s justly critical
note. Corp. Law, 1996, No. 224. 
19
Newsl., I., No. 119. 
20
See supra, note 1. 
18

Basing itself again, but leading to another result, on the fact that “statutes establish the law of
parties and contractual freedom gives them the right to organize the contents itself of statutes as
they wish,” the First Civil Division, in its rejecting of the Appeal, approved of the Court of
Appeal’s decision, with only the case of fraud in reserve, which was not then claimed. Thus, the
idea is brought forth that statutes, for lack of membership restrictions, include an offer to which a
simple acceptance along with payment of dues suffices to amount to a positive answer. Parties
then agreed, without the association, although the first one to be bound by the statutes, being able
to issue a refusal in the future. The obligation to accept a given membership should only be
limited by the lack of conforming of such membership to the social object, and, as mentioned
above, by the existence of fraud, on which two options only trial judges can rule.
It cannot be hidden from these Mélanges how the reversal actually occurred. Mentioning, during
a conference on the freedom of associations21, the freedom of membership, I had noted Prof.
Guyon’s opinion who had written:
“Should statutes not have provided for acceptance of future members, membership refusals are
allowed, but cannot be discretionary. They must base themselves upon the lack of a quality
expressly required of the members, and on this ground only22.”
Agreeing with this opinion which seemed reasonable to me, and which I had quoted, I had
discreetly, due to the nature of the matter, suggested the idea that the question should “remain
pending.” When it was raised a few months later before the First Civil Division, could it be that
the President of the Division, who attended the conference, and whose attention was then thus
attracted, passed the message on to his Division? The predecision conference confidentiality
protocol does not allow us to know the position of the talebearer, nor the opinions expressed
during the hearing. Nonetheless, I firmly believe that the above doctrinal opinion thankfully
weighed in the discussion.
During the normal course of business, perhaps the most important thing is to notice is the almost
total lack of disputes regarding the principles themselves ruling the design of an association’s
legal structure, since great license is given in this regard to statutes writers, with the 1901 Law
(Article 5) simply mentioning there being an “administration or leadership.” The disputed items
are focused on two points, which deal both with lawsuits in the name of the association, although
the first one is of a greater scope: the power to act, and the interest to act.
According to the February 5, 1991 Order23, the First Civil Division ruled that “the president of an
association is a mandatary of that entity whose powers are determined according to the
provisions of the association’s convention.” Such power is therefore not automatic, which would
require verification on the part of the judge if contested24. Since this sends back to the statutes,
the Supreme Court tends to hide behind trial judges’ sovereign authority in their interpretation
concerning the scope of such powers according to the case at hand. Thus, it ruled25 regarding an
Order through which a Court of Appeal had deducted from a clause which granted all powers to

21

The Freedom of Association and the Law, Constitutional Counsel, June 29-30, 2001, p. 91, no. 24. 
Assocations, Dalloz Action, 2000, No. 1159, Rappr. E. Alfandari , RTD com, 1988, p. 87 
23
NewsI., No. 45; Rev. societies, 1991, p. 773, D. Randoux’s note. 
24 st
1 Civ., Jan. 11, 2000, Corp. Rev., 2001, p. 319, Y. Chartier’s note. 
25 st
1 Civ., March 2, 1999, Newsl., 1, No. 69, prec.; Corp. Law, 1999, No. 88, Th. Bonneau’s note 
22

the president to represent the association in all civilian life actions and before courts, stipulating
that the president therefore the power to start a lawsuit in the name of the association, “for lack
of a statutory provision to the contrary, or of a general assembly deliberation withdrawing such
power from the president.” Through yet another Order26, where it might have made sense for the
Supreme Court to again hide behind this sovereign assessment of matters, the First Civil
Division, settling the matter by itself, ruled, in order to reject an appeal against an Order having
accepted the suit started in the name of a particular association with no general assembly
deliberation nor board of directors decision, that “the quality conferred upon the president to sue
per Article 11 of the statutes, as a plaintiff as well as a defendant, implies[ed], apart from any
statutory depositions or contrary decisions on the part of the deliberating sections of the
association, the power to decide regarding the lawsuit opportunity. This is of course not saying
that all Orders are in favor of action on the part of the president, since it all depends on the way
the statutes themselves are phrased. Thus, the Social Division27 ruled in an entirely logical
manner, thus settling the question, that when statutes stipulate that the president insures the
implementation of the board’s decisions of which he is the legal representative, such provision
does not grant him the authority to appeal (and hence to appeal to the Supreme Court,) as the
subsequent transfer of a regular power after expiration of the deadline for appeal cannot hide the
substantive irregularity thus caused. This is tantamount to establishing a difference between the
president as a leader and decision maker, and the president as a simple implementer of the
deliberating department decisions. Such power can always be delegated, as long as the latter
complies with the statutes28. In this sense also, a November 19, 2002 Order29 approved a Court
of Appeal who had, in order to reject the appeal of the president of a particular association, noted
that, after having noticed that per the statutes, “he had no particular power safe that of making
sure of its good functioning by calling a board of directors or general assembly meeting, “that,
“not vested with the legal representation power, he had received no special mandate to do so.”
Depending upon the statutes, this is how associations’ interest to act is determined. An October
27, 1993 Order put a logical limit by specifying that an association cannot legally claim a
violation of its statutory provisions for which it is not itself responsible30.” This being said, the
principle is that, at least in civil matters, on top of their own damage, associations would have an
interest in starting a lawsuit which would hurt the collective interest of their members whom it
purports to protect31, which necessarily renders void any suit seeking the defense of interests of a
person who is not a member32, or one which supports the interest of a particular member,
separate from the interest of the association itself33. The assessment of this statutory issue
according to which is determined the nature of the reparable injury34 is also within the sovereign
authority35 of the trial judges, so that the Supreme Court’s reasoning is in principle based upon

26

1st Civ., Nov. 7, 1995, Newsl., No. 389 
Corp., April 30, 1997, Newsl., V, No. 147. 
28
Corp., June 6, 2000, Newsl., No. 220, regarding the power to represent in court. 
29
NewsI., No. 242. 
30 st
1 Civ., Oct. 27, 1993, Newsl., I, No. 297; Corp. Rev., 1993, p. 88. 
31 st
1 Civ., May 15, 1990, Newsl., I, No. 102; Corp. Oct. 11, 1994, Newsl., V, No. 266. 
32
Com., Jan. 19, 1999, Newsl., IV, No. 16; Corp. Law, 1999, No. 47, Th. Bonneau’s note. 
33 st
1 Civ., July 1, 1997, Newsl., I, No. 216. 
34 nd
2 Civ., Dec. 18, 1995, Newsl., II, No. 314. 
35
See for instance 1st Civ., July 1, 1997, Newsl., III, No. 216. 
27

findings of the judge of fact concerning the statutory issue36. At times, such findings suffice to
justify the ruling, as when they make it clear that the suit is different from the statutory issue37.
Conjunctly, through a July 17, 1997 Order38, the Third Civil Division limited itself to the trial
judges’ sovereign findings stating that an association, through its statutory mission, was
establishing its common interest which was not entirely covering that of each member, from
what it ruled that, by accepting the suit of this association, the Court of Appeal had not violated
the principle according to which none plead by prosecutor. The Supreme Court nonetheless is
able to exert some control when it comes to finding out whether, concerning the object
determined with sovereign power, the association has an interest to act. In a November 14,
200039, the First Civil Division even personally based itself on its statutes analysis, without
feeling the need to hide behind the trial judges interpretation (but then again perhaps they had not
given any in order to rule that “the association (the appeal plaintiff) statutes seem to indicate that
it had a legitimate interest in acting against a publication which, according to the association,
would have harmed the religious feelings of its members whom it purported to protect.” This
problem is often found regarding suits emanating from government approved consumer defense
associations40, regarding which one is frequently reminded that they have the right to request
compensation, namely damages before civil jurisdictions for any direct or indirect injury to
common consumer interest41.
The Supreme Court was also called to take interesting decisions during the last phase of
interaction between an association and its members, whether the end of such interaction results
into resignation or exclusion.
To tell the truth, the almost total lack of case law in the matter of resignation shows that the latter
does not seem to pose many problems. One must nonetheless quote here two orders, unpublished
in the Newsletter. The first, dated May 2, 200142, was issued in a matter of local Alsatian law
which allows for the of the members of a given association where the resigning member, who
was requesting refunding of his membership dues, was faulting a Court of Appeal to have based
itself, for the refusal of such refund, upon an article of the statues which excluded refunds to the
benefit of “excluded” members: the Court of Appeal was faulted for having mixed up exclusion
and resignation in the refusal of the refund. The other one43 is quite interesting because it shows
how a merchant, former member of “a merchant association not related to the Carrefour
commercial center,” who had resigned from the association, but had not shut his store down, was
sentenced to the payment of amounts corresponding to center promotion expenses, based on the
statutes, thus admitting that, perhaps not all the statutes but at least one of the clauses was still
applicable in professional relations between the parties.

36

See, very characteristic in that regard, 3rd Civ., March 10, 1999, Newsl., I, No. 61. 
1st Civ., July 1, 1997, prec. 
38
Newsl., III, No. 165. 
39 st
1 Civ., Nov. 14, 2000, Newsl., No. 289. 
40
See for instance 1st Civ., March 13, 1996, Newsl., I, no. 134. 
41 st
1 Civ., Oct. 5, 1999, Newsl., I, No. 260 
42 st
1 Civ., May 2, 2001, Corp. Law, 2001, No. 123, Th. Bonneau’s note, Order not published to the Newsletter. 
43 st
1 Civ., March 20, 2001, Appeal No. X 98-10.578. On this particular Order, see Y. Chartier, The Freedom of
Association in Supreme Court Case Law, in Report of the Supreme Court for 2001, French Documentation, p. 65
and fll., espec. p. 78. 
37

The exclusion is by nature a situation of conflict, therefore it is more difficult. The issue is
twofold, it deals with content and form. Regarding content, it is a well known fact that the
Supreme Court requires of its judges to search whether the faulted facts are covered by the
statutes, and that it has itself control over the importance of the charge44. Recent case law says
little on the matter. We can bear in mind the case law reported above, where the membership to
an association was linked to a larger contractual transaction. The Supreme Court thus dealt with
a matter where the owner of a supermarket had joined an “Association of Leclerc distributing
centers” and signed with it a contract authorizing usage of the Édouard Leclerc tab sign.
Subsequently, the board of directors had cancelled the tab sign contract and excluded the
merchant from the association. The latter was faulting the Court of Appeal for having rejecting
his request to rule against the exclusion. The First Civil Division, by a December 3, 1996
Order45, ruled as legally justified the Order through which the Court of Appeal had ruled that
“the association’s statutes and the tab sign contract form[ed] an indivisible whole”: here,
consequently, the indivisibility issue led to evaluate the application of the association’s contract
together with another contract in order to decide in favor of the exclusion of one of the members.
Yves Guyon nonetheless, and for good reason, remarked that the contrary to this sort of set up,
which caused several decisions46, goes against the freedom to bow out of an association’s, in that
this bowing out causes the exclusion of the benefit of the contract to which the membership is
linked47. As far as the form goes, that is regarding the exclusion procedure, the statutes are in
theory applicable, as evidenced by an April 16, 1996 Order48. One must nonetheless notice that
in that particular case, the implementation of statutes was aimed at the protection of members’
interests. Endorsement of the Order refers to Article 1134 of the Civil Code as well, but also to
the rights of the defendants. And here is displayed a typical example of the intention of the
Supreme Court, beyond the law of statutes, a unique section of law, to widen the debate when
there is the need.

*
**
Indeed, courts had to fill in the gaps in the cases of lack of answers contained in the statutes
themselves, quite a lack since, as seen above, the 1901 Law does not feature any specific
obligation49 concerning the set up of the group, with only associations recognized as public
utility associations being required to formulate statutes specifying administrative structures. The
reference of the Supreme Court to Article 1134 of the Civil Code points out that an association
is, by essence, subject to Title III of the Third Book of the Civil Code (“On Contracts or
Conventional Obligations in General”.) But, without expressly saying so, it has had a tendency to
include associations in a legislature which, stemmed in large part, but in part only, from
corporate law, thus leads to the constitution of an embryonic body of rules of groups.

44

Our previous study, p. 74 
1st Civ., Dec. 3, 1996, Newsl., I, No. 424; Corp. Rev., 1997, p. 550, Y. Guyon’s note; Corp. Law, 1997, No. 37,
Th. Bonneau’s note. 
46 st
1 Civ., Nov. 19, 2002, Newsl., I, No. 95; Corp. Law, 2002, No. 107, E.-X. Lucas’ note, prec. 
47
See note under Plen. Ass., Feb. 9, 2001, prec., Corp. Rev. 2001, espec. p. 360. 
48 st
1 Civ., April 16, 1996, Newsl., I, No. 179. 
49
See in particular Isabelle Urbain-Parleani, The Legal Remedies to Democratic Crises within Associations. Corp.
Rev., 2001, p. 768 and fll. 
45

Regarding general contract law, an idea seems to prevail, which won’t surprise anyone: the
requirement of good faith. If one must list here defendants’ rights50, it is because the latter are
not included in the new Civil Procedure Code, or in the European Safeguard Convention51. When
he appears before the governing body in charge of his case, the member in question does not
indeed appear before a court. But the right for members to be made aware of the grievances they
are charged with, to be summoned in time in order for them to be able to explain themselves, in
short to insure their defense with the benefit of the contradiction clause, is actually relevant of
the loyalty principle which must precede all contract enforcement. And that is why, in the above
mentioned Order, reference to Article 1134 of the Civil Code must be considered as referring to
paragraph 3 as well as 1. In general, the vaguer, or even faulty statutes are, the more it seems
logical as well as necessary to compensate their lack, as the Supreme Court does, with a logic
which, without it being automatically mentioned, is quite necessary. It is true that a more recent
Order dated March 19, 200252 ruled alluding simply, beside the right of defense principle, to the
July 1, 1901 law, with no other reference: but this should not be interpreted as a change in case
law. When the First Civil Division rule, through the March 29, 1989 Order53, “taking into
consideration the rules which are applicable to associations disciplinary decisions, and mainly
the contradiction clause,” which rules are purely a matter of case law, it was the same balance of
rights, that is the same contractual balance which was the underlying issue. It is only true that
defense principles are an integral part of the general principles of our judicial system, thus going
beyond the contractual setting in which they are mentioned.
Such good will requirement should however not be linked with the case law connected with the
Order of the First Civil Division dated June 16, 199854 which rejected the appeal made against a
Court of Appeal decision whereby it had been ruled that the member of an association which had
organized a tourist trip for its members had been seriously dishonest in that it kept for itself the
discount granted by the travel agent without alerting the other members of the association and
simulating payment of the trips, of which it benefitted members of his family, which justified the
exclusion of the culprit. Honesty, as well as honor are superior human values which go well
beyond the scope of the Civil Code.
Thus, it is also endorsed by Article 1134 of the Civil Code that an Order of the Third Civil
Division dated June 20, 200155 quashed a Court of Appeal decision which had validated an
Assembly amend of a free urban land association’s suit without realizing that one of its members
who had originated the protest, “had accepted modification of the statutes when it actually meant
a raise in his salary.” Although many other legal analyses led to the same result, as shown by
Prof. Alfandari56, the solution, whose adaptation to the 1901 Law is doubtless, was mandatory
when it comes to contract law. To further members’ commitments without their approval would

50

Besides the above mentioned Orders, see also 1st Civ., April 22, 1997, Newsl., I, No. 120; Corp. Rev., 1997, p.
550, Y. Guyon’s note; Corp. Law, 1997, No. 98, Th. Bonneau’s note. 
51
Contra, see however an unpublished Order 1st Civ., Jan. 22, 1991, Corp. Rev., 1991, p. 389. 
52 st
1 Civ., March 19, 2002, Newsl., I, No. 95. 
53
Newsl., I, No. 141. 
54
Newsl., I, No. 207. 
55
Newsl., III, No. 79. Corp. Rev., 2002, p. 321, E. Alfandari’s note. 
56
See the above mentioned note, and the other three possibilities considered by the author 

indeed be going against their contractual obligations -- which, when it comes to associations are
in fact quite limited.
If the rules which result from the contract constitute, in essence, a common ground to all groups
of the same nature57, it is in a more idiosyncratic way, through notions borrowed from the
legislature specific to groups58, that the Supreme Court filled the statutory lacks regarding the
functioning of associations, when it applied. It developed this legislature in great part based on
existing rules borrowed from corporate law. Great was indeed the temptation, because such law
is nowadays quite regimented, and as a result, it gives each time if not the answer required, at
least some kind of an answer to all the questions and challenges which can be encountered in the
field. The need to fill in the gaps is due to the fact that associations’ contracts potentially create a
group which must be able to function while respecting its essence, which is based upon free
interaction between members, basic equality among them, even if not absolute, and a will to
achieve a common social goal, in other words, a sort of affectio associationis. To reiterate Prof.
Paul Didier’s image59, it is actually the nature of the organizational contract of the association
contract which implies that, in case of statutory lack, measures be taken to fill the void.
One is thus aware of the incident of the session, outlined in joint stock corporations writings at
Article 160 of the July 24, 1966 Law 9 (Artistic. L. 225-105 C. com.,) paragraph 3, according to
which the assembly who is technically not allowed to deliberate on a point not listed on the
agenda, “nonetheless… can, under all circumstances, fire one or more administrators and have
them replaced.” The First Civil Division adapted this provision in a November 29, 1994 Order60,
when it ruled that a Court of Appeal had rightly ruled that an extraordinary general association
assembly normally constituted “had all the powers to fire certain administrators the moment the
judges of second degree noted that such action was justified by the incidents occurred during the
assembly itself.” As pointed out by the Order’s commentators, that which is totally remarkable,
is that the Supreme Court had judged the disputed decision legally justified “including the
reference to corporate law,” which is tantamount to saying that the Civil Code and the
Commercial Code, in their provisions regarding corporations, might be applicable. But on this
point, Michel Jeantin can only be commended for having excluded the technical provisions, and
for only considering provisions which, by their nature, might be generalized, as can be “any rule
which is sufficiently neutral regarding the definition of the group in question,” which would
imply by definition that it is not contrary to association principles. It is the case, for instance of
the requirement for regular quorum, upon which the July 3, 2001 Law indirectly ruled61.
Can also be linked to that law the December 14, 1999 Order62, by which the First Civil Division
rejected the appeal filed against an Order which had ordered to an association to hand to one of
its members who was a candidate for the board of directors the voters’ list, even though in this
case, the Supreme Court had to rule by simply by discarding arguments based on different

57

See for instance, with regards to GIE: Cass. com., July 7, 1993, Newsl., No. 265, with emphasis made on “abusive
conditions.” 
58
D. Randoux. Towards a Common Group Law, JCP, 1996, Ed. G. L. 3982. 
59
Short notes on organizational contract, Festschrift François Ferré, Dalloz, P. 635. 
60
Newsl., I, no. 344; Corp. Law, 1994, p. 318, Y. Guyon’s note; Joly Newsl., 1995, para. 48, M. Jeantin’s note. 
61 st
1 Civ., July 3, 2001, Corp. Law, 2001, No. 155, Th. Bonneau’s note. Quashing ruling for lack of response to
conclusions. 
62
Newsl., I, No. 339; JCP, 2000, Ed. G., II, 10264, Y. Chartier’s note. 

articles excerpted from the January 6, 1978 Law known as “Information and Freedoms.”63 One
must still exercise great caution, as this is no simple adaptation of Article L. 225-116 of the
Commercial Code which states a principle according to which, prior to any general assembly
meeting, all shareholders has the right to obtain the list of shareholders. And it is a well known
fact that substantive jurisdictions are very reserved on the matter64. If the equality of election
candidates seems to be an underlying principle, one can wonder whether the statutes couldn’t
conceive of other solutions in order to insure the shareholders’ freedom of choice, as, for
instance, the requirement made to leading governing bodies to broadcast the statement of belief
of the candidates to all voters. But the evolution might not be over, if one considers the doctrinal
opinion, held especially by Yves Guyon, according to which the adaptation of this article “is
desirable, as it allows for more democratic operations on the part of associations65.”
Legal writings also studied a November 19, 1991 Order of the First Civil Division66 whereby it
was ruled that “in the absence of a contrary legislative, regulatory or statutory provision, the
voiding of a deliberation taken by the general assembly of an association governed by the July 1,
1901 Law cannot have a retroactive effect.”
That which can seem astonishing at first sight is the fact that this Order was not published in the
Newsletter. There is a good example of the discrepancy between the perception of a “live”
decision by the group that made it along with its president, and how it can be interpreted
subsequently. The lack of publication of a Supreme Court Order shouldn’t hide its interest, even
if it is true – this explaining perhaps that – that in this case, the decision is not one of the most
enlightened ones. At any rate, the influence of corporate law can be again seen here, through a
double degree adaptation, and more specifically here, the influence of Article 1844-15 of the
Civil Code, according to which “when the declaration of invalidity of a corporation is
announced, it ends the implementation of the contract with no retroactivity.” Let us however
make note of the reservation, put forth by the Order’s writers, regarding one of the statutes
provisions, which is all the more outstanding that it grants them an arguable power to determine
the results of the declaration of invalidity.67
In the same spirit is also the case law which tends to deal with the responsibility of the leaders of
an association similarly to that of corporations, and more broadly, of groups with a corporate
veil: such responsibility68 can only be engaged in the case of an error separate from the official
functions69.
Under group law, it is finally necessary to mention the possibility to have a temporary legal
administrator appointed, although it goes beyond it, and is a part of common law in the broadest

63

See our obs. under Order, JCP, 2000, II, 10264. 
TGI Paris, Dec. 12, 2001, Corp. Law 2002, p. 363, Y. Guyon’s obs.; Paris, Oct. 30, 2001, Corp. Rev., 2002, p. 87,
Y. Guyon’s obs. 
65
Previous note. Also see keynote by same author at the conference entitled, On Democracy and Associations, on
the topic, “Inadequacies during Normal Functioning Conditions of Associations,” Corp. Rev., 2001, p. 735 and fll. 
66
Corp. Law, 1992, No. 6, Th. Bonneau’s obs., RTD com 1992, p. 413, no. 18 E. Alfandari’s obs. 
67
For a critic of that reservation, see Th. Bonneau’s prev. obs. 
68 nd
2 Civ., Feb. 19, 1997, Newsl., II, No. 53, Corp. Rev., 1997, p. 816. 
69
On the tortious or quasi tortious responsibility of associations’ leaders towards third parties, see Y. Guyon’s note
under 1st Civ., Feb. 5, 1991, Corp. Law, 1993, p. 561. 
64

sense, and extends in particular to indivisibility (Article 815-6 of the Civil Code), as a First Civil
Division January 9, 1996 Order70 mentions after many others. Such an order has in appearance
but a limited interest, as it rules on a lack of answer to conclusions. What is worth remembering
from it however is that is implicitly condemns the idea that, as the Court of Appeal had done, the
temporary administration is limited to the case where the alleged facts would cause injury to the
existence of the association itself: in fact, it implies that the system is not very different from the
one to which corporations abide, and that appointment is linked to the poor functioning of the
association, according to Article 873 of the New Code of Civil Procedure.
And, upon dissolution of the association, the principle of survival of the corporate veil for
purposes of liquidation is found there also71.
Nonetheless, it is only perhaps on a case by case basis that one can compare the functioning of
corporations with that of associations. Regarding dissolution specifically, Yves Guyon observed
well ahead of the ministerial decision mentioned above72 that a one-member association could
not escape dissolution73. In another realm, the June 27, 2000 Order74 ruled, with regards to a
general assembly, “that the voiding of the deliberation of an association general assembly is
caused by the fact that this assembly did not respect the statutory rules relative to voting
modalities.” Such decision, which condemns here the useful vote theory, is particularly
interesting because it goes against the law applicable to the voiding of corporations (Article
1844-10, par. 3, Civ. C.; L. 235-I, par. 2., Com. C.) It can be explained by the idea that “when an
entity is ruled for the main part by a contract, it makes sense that its violation be sanctioned
accordingly75.” It was pointed out that such solution is close in spirit to that adopted by other
Divisions of the Supreme Court pour social deliberations other than assemblies of corporations
which are classified separately76.
Thus, by and through the files brought to its attention, the Supreme Court is able to build law bit
by bit. The result of such research cannot but have gaps, whereas, as previously noticed, Orders
are few and far between, which is actually a sign of good health on the part of associations. Such
analysis is all the more arduous than it is necessary to distinguish between matters pertaining to
the Supreme Court, and those belonging to the trial judges’ sovereign assessment, and the line
there is at times blurry. But if one is willing to pay attention to the road signs that are indeed
statutes, general contract law and embryonic group law, case law will appear in the end both
flexible and consistent, it reaches a balance between the role of individual will and that of the
judge with a goal to insure the former’s efficient functioning.

70

Newsl., I, No. 16, Corp. Law, p. 382 
See 3rd Civ., Oct. 4, 1995, Newsl., III, No. 214; Corp. Rev., 1996, p. 102, Y. Guyon’s note. See also 1st Civ., April
4, 1991, Newsl., I, No. 111. 
72
Supra, note 2. 
73
Corp. Rev., 1996, p. 104. 
74 st
1 Civ., June 27, 2000, Newsl., No. 195; Corp. Rev., 2001, p. 105, D. Randoux’ note. Rappr. given regarding
irregularity in association committee structure; 1st Civ., July 3, 2001, Corp. Law, 2001, No. 155, Th. Bonneau’s
note. 
75
D. Randoux, previous note. 
76
D. Randoux and Th. Bonneau, prev. notes. See, regarding a real estate association general assemble, Order
regarding articles 1844 and 1844-10 of the Civil Code; 3rd Civ., Oct. 21, 1998, Newsl., No. 203. 
71

November 2002