Since 1804, the Civil Code has required performance in good faith. The 2016 reform moved the rule to Article 1104, extended it to the negotiation and formation of the contract, and expressly made it a matter of public policy — no clause may derogate from it.
This principle allows the judge to neutralise the unfair exercise of a right, without touching the right itself. The commercial chamber drew this line in the so-called “Les Maréchaux” judgment of 10 July 2007 (no. 06-14.768): good faith “allows the judge to sanction the unfair use of a contractual prerogative”, but “does not authorise him to undermine the very substance of the rights and obligations lawfully agreed between the parties”.
Applied to franchising: the franchisor does not lose its right to terminate, nor its right to be paid. But the manner in which it triggers the termination may be held to be unfair and deprived of effect. Since good faith is presumed, it is for the party alleging unfairness to prove it.
Two judgments extended this reasoning to distribution networks: the Huard judgment (Com., 3 November 1992), in which a supplier deprived its distributor “of the means to charge competitive prices”, and the Chevassus-Marche judgment (Com., 24 November 1998), which requires the principal to put its agent “in a position to perform its mandate”.