In a recent decision issued by the Bihor Tribunal, the court ruled that the breach of a carrier’s obligation not to contact the contracting party’s commercial partners (freight forwarding companies) triggers contractual liability, thereby activating the penalty clause established by the parties in the transport contract. This case highlights the importance of protecting client portfolios in the road transport sector and the legal enforceability of non-compete clauses.
Facts of the Case: Misappropriation of a Business Partner and Breach of the Non-Contact Clause
The two companies had a long-term collaboration under which the claimant (a freight forwarding/transport company) subcontracted various road transport orders to the defendant. Each transport order, formalized with a signature and stamp, contained a strict protection clause: the subcontracted carrier was prohibited from contacting the contracting party’s partners (shippers or consignees) for a period of 2 years from the acceptance of the order.
Failure to comply with this obligation was sanctioned under the parties’ agreement with a penalty of EUR 50,000. The final recipient of the transported goods was a company with which the claimant had a substantial turnover.
Starting in 2023, the defendant ignored the contractual prohibition and established direct contact with this strategic partner of the claimant. Evidence showed that an employee of the defendant initiated the direct collaboration by proposing transport offers that resulted in the takeover of approximately 90% of the orders the final client had previously placed with the claimant. Although the defendant argued that the initiative came from the client, the court found the opposite and emphasized that, in any case, the contractual obligation prohibited any form of direct cooperation that could constitute unfair competition.
Applicable Legal Provisions: Full Texts
The case was resolved based on the following provisions of the Civil Code and special legislation:
Art. 1,270 para. (1) Civil Code (Binding Force): “A validly concluded contract has the force of law between the contracting parties.”
Art. 1,350 Civil Code (Contractual Liability):
“(1) Any person must perform the obligations they have undertaken.
(2) If, without justification, they fail to fulfill this duty, they are liable for the damage caused to the other party and must repair it according to the law.”
Art. 1,530 Civil Code (Right to Damages): “The creditor has the right to damages to repair the harm caused by the debtor, which is the direct and necessary consequence of the unjustified or, as the case may be, culpable non-performance of the obligation.”
Art. 1,538 Civil Code (Penalty Clause):
“(1) The penalty clause is one whereby the parties stipulate that the debtor undertakes a specific performance in case of non-fulfillment of the main obligation.
(2) In case of non-performance, the creditor may request either specific performance of the main obligation or the penalty clause.
(3) The debtor cannot discharge themselves by paying the agreed compensation.
(4) The creditor may request enforcement of the penalty clause without being required to prove any damage.”
Reasons for Granting the Claim
Based on the arguments presented by the lawyers from Brisc Legal representing the claimant, the court found the claimant’s action to be well-founded, relying on the following key legal points:
- Existence and Validity of the Penalty Clause: The parties freely agreed, through the transport order contracts, on an anticipated assessment of damage (penalty clause) amounting to EUR 50,000 in the event of direct client contact. This amount was considered reasonable in relation to the claimant’s lost turnover.
- Proof of Breach of the Non-Contact Obligation: Through witness statements and service records based on partner files, it was demonstrated “beyond doubt” that the defendant contacted the claimant’s partner and began providing services directly, breaching the 2-year prohibition period.
- Irrelevance of Who Initiated the Contact: The judge clarified that, regardless of whether the first interaction came from the defendant or the client, the obligation not to contact the partners essentially prohibits any collaboration with them. The purpose of the clause is to prevent unfair competition by exploiting commercial information obtained during the initial partnership.
- Full Compensation of Damages: The court ordered not only the payment of the contractual penalty but also its adjustment for inflation and the payment of legal default interest. It was noted that the adjustment represents actual loss (damnum emergens), while the interest represents unrealized gain (lucrum cessans), their combination being necessary for full reparation.
Ultimately, the defendant was ordered to pay EUR 50,000 (equivalent in local currency), plus applicable interest and legal costs.
Have you been involved in a commercial dispute concerning the breach of contractual clauses? We are here to assist you with contract analysis and specialized legal representation. Would you like to schedule a consultation to review the validity of the non-compete clauses in your contracts?