Requiem for an Adhesion Contract

Listen to the organs — they are playing for you.

How fearful that tune.

Significant imbalance lies at the heart of business law. In a legal order of liberal inspiration, each party is the guardian of its own interests. To borrow Fouillée’s aphorism: « what is contractual, is just ». Since homo juridicus is assumed to be reasonable, that party will have consented only to reasonable sacrifices. So with the one who agrees to a derisory profit margin in order to win a contract or to entrench its technology.

The limit of the exercise lies in the fact that some sacrifices were not consented to, but imposed. As has been brilliantly demonstrated (Th. Revet, « Le contrat d’adhésion », in Réforme du droit des obligations, on s’était dit rendez-vous dans dix ans, L. Thibierge (dir.), forthcoming in RDC 2026, no. 3; by the same author, « Les critères du contrat d’adhésion », D.2016, p. 1771; « L’incohérent cantonnement, par l’Assemblée nationale, du domaine du contrat d’adhésion aux contrats de masse », D. 2018, p. 124), alongside classical contracts—the fruit of a meeting of minds—there exist contracts whose content was not desired but imposed.

This is how positive law combats significant imbalances when they arise not from free negotiation but from a power dynamic.

Three texts thus serve as safety valves against imbalances too pronounced to be tolerated by the law, where they have not been freely accepted but imposed.

Let us briefly recall the forces at play:

On the left, the Consumer Code, Article L. 212-1 of which provides: « In contracts concluded between professionals and consumers, are abusive those clauses that have the object or the effect of creating, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties to the contract ». The text further specifies that « the assessment of the abusive character of clauses within the meaning of the first paragraph relates neither to the definition of the principal object of the contract nor to the adequacy of the price or remuneration with respect to the good sold or service offered, provided that the clauses are drafted in a clear and intelligible manner ».

At the centre, the Civil Code, whose Article 1171—introduced by the Ordinance of 10 February 2016 and subsequently amended by the Ratification Act of 20 April 2018—provides that, « in a contract of adhesion, any non-negotiable clause, determined in advance by one of the parties, which creates a significant imbalance between the rights and obligations of the parties to the contract shall be deemed unwritten ». A useful clarification: the review of imbalance cannot extend to the principal object of the contract or to the adequacy of the price with respect to the performance.

On the right, the Commercial Code, whose Article L. 442-1, I, 2° sanctions the fact, on the part of any person engaged in production, distribution or services activities, of « subjecting or attempting to subject the other party to obligations creating a significant imbalance in the rights and obligations of the parties ». Characteristic features: first, the text requires proof of a relationship of subordination, upon which many claims founder; second, the scope is restricted to contracts concluded in the course of an enumerated professional activity; finally, greater latitude is afforded to the judge, who may review imbalance bearing on the principal object of the contract or on the adequacy of the price with respect to the performance.

It is sometimes said that an abundance of goods does no harm. But a profusion of texts may.

Oh, certainly, it is not Article L. 212-1 of the Consumer Code that creates difficulty. That text is known to be reserved for consumers. The problem rather lies in the competition between Article L. 442-1 of the Commercial Code and Article 1171 of the Civil Code. As soon as the dispute arises in a professional setting (B2B), the contracting party suffering from a significant imbalance might legitimately hesitate between these two grounds—it being recalled that the conditions of the action and their respective regimes differ.

Does our professional have a choice between the Civil Code and the Commercial Code?

A recent decision (Cass. com., 13 May 2026) afforded the Commercial Chamber of the Cour de cassation the opportunity to answer that question.

In the case at hand, the dispute pitted the company Comuto Pro—a subsidiary of the BlaBlaCar group dedicated to intercity coach transport (BlaBlaBus), which markets transport services whose performance is subcontracted to professional carriers—against Les Voyages Star and Capri Cars, a Belgian-law carrier, concerning a contract for a passenger coach transport service.

On 23 April 2020—the health crisis having upended the contract’s economics—Comuto Pro notified its counterparty of a draft amendment. The negotiations having stalled, Comuto Pro terminated the contract on three months’ notice. Reproaching Comuto Pro for having imposed upon it a contract of adhesion creating a significant imbalance to its detriment—stemming notably from a limitation-of-liability clause for the sole benefit of the operator and a unilateral termination clause in the event of refusal of the proposed amendments—Capri Cars sued for damages.

The position may seem peculiar, since Article 1171 of the Civil Code sanctions significant imbalance by deeming the clause unwritten—and not by damages—whereas Article L. 442-1 of the Commercial Code opens with the words « engages the liability of its author… ».

The Paris Court of Appeal dismissed the claim, on the ground that the contract was not a contract of adhesion. Hence an appeal by Capri Cars, which the Commercial Chamber of the Cour de cassation, presided over by Vincent Vigneau, dismissed in turn.

For the High Court, the debate lies upstream. The problem is not the characterization of a contract of adhesion, but the very notion of a contract of adhesion, which is inapplicable here.

To this end, the Commercial Chamber cites the « parliamentary works that led to Act no. 2018-287 of 20 April 2018 ratifying Ordinance no. 2016-131 of 10 February 2016 », which would, it is said, show that the legislature’s intent was that « Article 1171 of the Civil Code, which governs the general law of contracts, sanctions abusive clauses in contracts not covered by the special provisions of Article L. 442-6, I, 2°, of the Commercial Code, in its wording prior to that resulting from Ordinance no. 2016-131 of 10 February 2016, whose provisions are now found in substance in Article L. 442-1, I, 2°, of the same Code and in Article L. 212-1 of the Consumer Code ».

From which the Court deduces that « Article 1171 of the Civil Code, interpreted in the light of those works, therefore does not apply to contracts concluded by a person engaged in production, distribution or services activities, except where the application of Article L. 442-1 of the Commercial Code to such contracts is excluded by another provision ».

Since, in the present case, « Comuto markets transport services, from which it follows that the commercial negotiations it conducts and the commercial contracts it enters into fall within the scope of Article L. 442-1 of the Commercial Code », it follows that « Article 1171 of the Civil Code is not applicable to the dispute ».

In other terms, Article 1171 of the Civil Code is excluded as soon as the contracting party accused of having imposed a clause creating a significant imbalance falls within the scope of Article L. 442-1 of the Commercial Code.

The rule calls for several observations.

First, as we have already written, the reference to the parliamentary works of the Ratification Act does not strike us as decisive. The text of Article 1171 dates from the 2016 Ordinance and was only partially modified in 2018 (it was simply clarified that only non-negotiable clauses could be subject to judicial review). The very principle of Article 1171 was therefore laid down as early as 2016. In that respect, the 2018 legislature’s intention—it being not its father—is not necessarily decisive. And it is far from certain that the mere words of the Commission’s rapporteur can be regarded as voicing a unanimous opinion, certain voices having proposed, on the contrary, a logic of superposition (on this point, X. Lagarde, « Questions autour de l’article 1171 du code civil », D. 2016, 2174; adde D. Fenouillet, « Le juge et les clauses abusives », RDC 2016. 358). True, one has hardly any better to hand than these parliamentary works—the Report to the President of the Republic having no greater legal authority. For want of thrushes, one ate blackbirds.

Secondly, one will note a notable development compared to the Green Day decision of 26 January 2022 (Cass. com., 26 January 2022, no. 20-16.782), which had held that « Article 1171 of the Civil Code, interpreted in the light of those works, therefore applies to contracts, even those concluded between producers, traders, industrialists or persons registered with the trade register, where they do not fall under Article L. 442-6, I, 2°, of the Commercial Code, in its wording prior to that resulting from the Ordinance of 24 April 2019, applicable in the case at hand, such as financial leasing contracts concluded by credit institutions and financing companies, which, for their banking operations and their related operations defined at Article L. 311-2 of the code monétaire au financier [sic], are not subject to the provisions of the Commercial Code on restrictive practices ».

In other words, in 2022 the Cour de cassation held that Article 1171 of the Civil Code applies to professionals who do not fall within the scope of Article L. 442-1 of the Commercial Code. The wording adopted in 2026 differs: « Article 1171 of the Civil Code, interpreted in the light of those works, therefore does not apply to contracts concluded by a person engaged in production, distribution or services activities, except where the application of Article L. 442-1 of the Commercial Code to such contracts is excluded by another provision ». The Court moves from a positive formulation (the text applies to professionals who escape L. 442-1) to a negative one (it does not apply to professionals, unless the application of L. 442-1 is excluded by another provision).

Moreover, the new formula is more precise. Whereas one might have hesitated over the meaning to be given to « falling under Article L. 442-1 » in Green Day, doubt is no longer permitted on reading Comuto: the general law reclaims its sway whenever a sector-specific text excludes, upstream, the application of the Commercial Code. This means that it is not enough for L. 442-1 to be inapplicable (for example because the requirement of subjection will not be established) for Article 1171 of the Civil Code to recover its dominion. A return to the « general » law is possible only if a text sets aside Article L. 442-1.

Thirdly, the practical reach of Comuto deserves discussion. To us it seems to fit within the same pattern as other rulings of the same Commercial Chamber, which is boldly and pragmatically rewriting certain swathes of contract law. One thinks of the precontractual duty to inform (the well-known « friterie » decision and its progeny, on which see L. Thibierge, « Devoir précontractuel d’information : mais où est donc Ornicar ? », Revue des contrats 2025, no. 3) or of contracting parties’ liability towards third parties (the Clamageran and France Comptabilité decisions, on which the reader is referred to our paper L. Thibierge, « De Boot Shop à Artemis », forthcoming in the RJDA of June 2026): in all those scenarios, the Commercial Chamber neutralizes what it perceives as certain excesses of the general law of contracts. Not by going directly contra legem, but by narrowing the scope of the relevant texts.

One question remains upon reading Comuto: what is left of the general law of contracts? If it applies only subsidiarily—where neither consumer law nor the law of restrictive practices is applicable—what relationships will it govern? One will not be satisfied with the idea that Article 1171 is confined to contracts between private individuals. Who will fail to see the artifice? In what circumstances is a private individual ever in a position to impose a contract of adhesion upon another private individual? What remains—as Comuto seems to suggest in negative—is the residual scope of Article 1171 of the Civil Code: contracts concluded by professionals engaged in production, distribution or services activities… but which a highly specific text removes from the special text that is Article L. 442-1 of the Commercial Code.

Finally, a word on the hiatus that may exist between the Cour de cassation and the lower courts. A recent decision of the Paris Court of Appeal illustrates the point (Paris, 14 January 2026, no. RG 23/17036; L. Thibierge, « Caducité, rentabilité, imprévision : et un, et deux, et trois zéro », forthcoming in Revue Lexbase Contrats, Responsabilité, Immobilier, 20 May 2026). In that case, beIN Sports challenged the validity of a clause waiving imprévision, stipulated in a contract of adhesion binding it to the Professional Football League (Ligue de Football Professionnel). The Paris Court expressly applied Article 1171 of the Civil Code and concluded that there was no significant imbalance. Yet, following the Cour de cassation, ought it not simply have declared Article 1171 inapplicable to the case at hand?

To be continued!