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 49
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RTD Civ. 1995 p. 885
Where the breaking of regular commercial relations is punishable
Jacques Mestre, Professor in the School of Law, Economics and Sciences of Aix‐Marseilles; Director of
the Business Law Institute [Institut de droit des affaires]
For seven years, each week the company Laiteries Bridel obtained its supplies from the company Debic
Saint‐Hubertus, based on periodic sales contracts. However, two months after being approached by
another supplier, it abruptly ended those regular business relations. Debic, which had formed
considerable stores that had become useless, then sued it for monetary damages. The judges on the
merits rejected the claim, noting the lack of supply commitment subscribed for in its favor by Laiteries
Bridel, but the commercial chamber (Jan. 7, 1992, this Revue 1992.394) censured this by reproaching
them for not having responded to Debic’s pleadings asserting that the break had been abrupt given that
it had built up a store intended to meet these orders. The court of appeal to which the case was
removed (Angers, Feb. 5, 1993) this time received the claim from the abandoned supplier, and the
commercial chamber, addressed again (Feb. 28, 1995, Bull. Civ. IV, no. 63, p. 60), rejected the appeal:
“the ruling notes that Bridal had had an ever‐increasing stream of business for approximately 7 years
with Debic; it adds that the latter was required, given the manufacturing and packaging times for the
product, to build a store relative to the volume of the orders, which were generally placed only one or
two weeks before delivery; the ruling also holds that in March 1984, Bridel, which has not proven the
wrongful behavior imputed to Debic, abruptly terminated its purchases from the latter after having
allowed it to believe that their relations would continue normally, although it had entered into an
agreement with another supplier as of early January 1984; in light of these observations, the court of
appeal was able to find that Bridel had allowed its right to terminate business relations with Debic to
degenerate into an abuse.”
Several interesting lessons can be drawn from this fully‐stamped decision:
‐ the regular conclusion of periodic contracts between parties of course does not cause a successive
performance framework agreement to be created between them, but is, however, of a nature to reduce
each party’s fundamental freedom to contract with the partner of its choice (on the affirmation of that
freedom, see Com. July 5, 1994, this Revue 1995.96);
‐ this is particularly the case when—as in the case at hand—one of the parties is in a situation of
economic dependence relative to the other and has been led to make investments with a view to
maintaining the business relations between them;
‐ a fortiori the abrupt cessation of these relations must be wrongful when an appearance of lastingness
had previously been maintained by the party now withdrawing.
That being said, the formula used by the commercial chamber (“the court of appeal was able to find
that…”) nonetheless appears to us to imply a certain degree of caution in the commentary inasmuch as,
as we have seen recently (this Revue 1994.352 and 1994.603), the High Court is clearly hesitating to
adopt a position of principle regarding the influence of the investments made by the distributor on the
producer’s ability to break in the neighboring field of concession contracts. In other words, everything
here appears to relate to circumstance, behavior and duration: the party suffering the break and
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claiming compensation is responsible for proving the age of the business relations and that its partner’s
attitude boded well for the future…
Keywords:
CONTRACT AND OBLIGATIONS * Termination * Open‐ended contract * Unilateral termination *
Business relations * Abrupt break
RTD Civ. © Editions Dalloz 2012
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