Lectern holding an open book, between a lit candle and one just snuffed out; a closed code lies on the floor

Note on Cass. com., 23 September 2026, no. 24-20.775, FS-B

O disastrous night! O dreadful night, in which there rang out all at once, like a thunderclap, this astonishing news: Madame is dying, Madame is dead!

Bossuet, Funeral Oration for Henrietta Anne of England, 1670

In the spring, we struck up a requiem for the adhesion contract between businesses. Four months later, the Commercial Chamber delivers the funeral oration: not only does Article 1171 of the French Civil Code give way whenever the contract falls under the Commercial Code, but courts must now check this of their own motion.

The Comuto decision will be remembered. On 13 May 2026, the Commercial Chamber held that Article 1171 of the Civil Code, read in the light of the legislative history of the 2018 Ratification Act, « therefore does not apply to contracts concluded by a person engaged in production, distribution or service activities, unless the application of Article L. 442-1 of the Commercial Code to such contracts is excluded by another provision »1. We heard in it a requiem for the adhesion contract and, more broadly, for the general law of contract2.

The Commercial Chamber, once again presided over by Vincent Vigneau and sitting as a section, has just handed down, on 23 September 2026, a decision to be reported in the Bulletin.

It repeats word for word the formula of the Comuto decision, but goes considerably further.

The disputed clause

In December 2018, an agricultural partnership (a société civile d’exploitation agricole) entrusted a limited company with cleaning its premises for five years. The contract contained a clause headed « suspension, termination ». Somewhat surprisingly worded, it provided that, in the event of serious or repeated failures by the service provider, the client could, after serving formal notice, request termination of the contract, on condition that it paid all the sums still to fall due, increased by a 10% penalty.

It is thus the client, the victim of the non-performance, that must pay to get out of the contract. All the sums still to fall due, plus a 10% surcharge.

A singular arrangement indeed.

Dissatisfied with the services provided, the client terminated the contract.

The service provider then sued it for EUR 108,110 in damages and EUR 10,810 under the penalty clause.

By a judgment of 10 September 20243, the Toulouse Court of Appeal held the termination wrongful, but dismissed the service provider’s claims.

In the eyes of the Toulouse judges, the clause, which forces the client to pay to exit a contract that its counterparty has breached, is deemed unwritten, since it was stipulated in an adhesion contract and creates a significant imbalance between the rights and obligations of the parties.

A textbook application of Article 1171 of the Civil Code.

Or not… if the provision does not apply.

The scope of Article 1171

The Commercial Chamber raised a pure point of law of its own motion, after giving notice to the parties. Citing Article 1171 of the Civil Code and Article L. 442-6, I, 2° of the Commercial Code (in its wording prior to the Ordinance of 24 April 2019), it makes the same reference, questionable in our view, to the legislative history, and then repeats the formula of the Comuto decision of 13 May4.

The Cour de cassation censures the Court of Appeal for having reasoned on the basis of the adhesion contract under Article 1171 of the Civil Code, « whereas it had found that the commercial company Praxis supplied cleaning services to its partner, the company Cedecso, from which it followed that it was for the court to examine of its own motion whether this contract fell within the scope of Article L. 442-6, I, 2° of the Commercial Code and, consequently, whether Article 1171 of the Civil Code was applicable to the dispute ».

At first sight, nothing has changed: the Court would merely be reaffirming the solution laid down in Comuto.

It should be borne in mind that, in Comuto, the Commercial Chamber had already amended its position compared with the Green Day decision of 26 January 20225.

In 2022, the Court held that Article 1171 « therefore applies to contracts, even those concluded between producers, traders, manufacturers or persons registered in the trades register, where they do not fall under Article L. 442-6, I, 2° », such as financial leases concluded by credit institutions and financing companies, which are exempt from the rules on restrictive practices.

In Comuto, by contrast, on 13 May 2026, the rule is expressed negatively: Article 1171 « therefore does not apply […] to contracts concluded by a person engaged in production, distribution or service activities », unless the application of the special provision « is excluded by another provision ». Ousting the general law becomes the rule; its return to favour, the exception.

Our colleague Thierry Revet, author of a powerful reflection on the adhesion contract, considers for his part that the new formula leads « to the same result » as the 2022 one: in both cases, « Article L. 442-1 of the Commercial Code drives out Article 1171 of the Civil Code » whenever it applies6.

On this point, one may be allowed not to share Professor Revet’s view entirely: since Comuto, it is no longer enough for Article L. 442-1 to be inapplicable on the facts, for instance because no subjection has been established, for the general law to regain its sway; a provision must also exclude the special law.

Be that as it may, this is not where the decision’s significance lies, since the Court reproduces verbatim the statement of principle of Comuto.

The Commercial Chamber takes its work of confining Article 1171 even further, by reshaping the role of the court.

The role of the court

In Comuto, the inapplicability of Article 1171 of the Civil Code stemmed from a pure point of law, suggested by the respondent and substituted for the Court of Appeal’s reasoning. Here, by contrast, no party raised the argument. The Court raised the point itself, and censured the lower court on that ground.

But that is not the heart of the matter. The main novelty of the Praxis decision, as it will no doubt be known, is that it places on the lower courts the duty to « examine of their own motion » whether the contract falls under the special provision.

Where Comuto, following Green Day, still left room for the principle that the parties frame the dispute (principe dispositif), Praxis changes the game. Even if the defendant failed to argue that Article 1171 of the Civil Code is inapplicable, the court would come to its rescue by raising the point of its own motion.

The interplay between the provisions is no longer a line of defence available to the drafter of the clause; it becomes a preliminary question, which the court must settle before it even opens the Civil Code.

After the requiem, burial by the court’s own motion.

Madame is dying, Madame is dead. Article 1171 has not been repealed, but its scope, already « reduced to the bare minimum »7, keeps shrinking, while the legislature is, on the contrary, expanding Article L. 442-18.

What field is left to the “general” law, once one removes relations between businesses and consumers and most relations between businesses?

The general law is dead; long live the special law!

Requiescat in pace.

Takeaways

  • Article 1171 of the Civil Code does not apply to contracts concluded by a person engaged in production, distribution or service activities, unless another provision excludes the law on restrictive commercial practices (Cass. com., 13 May 2026; Cass. com., 23 September 2026).
  • The lower courts must examine of their own motion whether the contract falls under former Article L. 442-6, I, 2° (now Article L. 442-1, I, 2°) of the Commercial Code as soon as they find that services are being supplied by a commercial company.

Notes

  1. Cass. com., 13 May 2026, no. 24-17.137, FS-B; obs. “Déséquilibre significatif : l’article 1171 du Code civil, disposition générale, ne s’applique qu’aux relations contractuelles qui ne sont pas régies par un texte spécial”, JCP G 2026, no. 22, p. 969; C. Helaine, “Le droit commun de la lutte contre les clauses abusives de nouveau réduit à sa plus simple expression”, Revue des commissaires de justice 2026 (HAL). ↩
  2. L. Thibierge, “Requiem for an Adhesion Contract”, thibierge.law, 14 May 2026. See already L. Thibierge, “Le contrat d’adhésion : beaucoup de bruit pour rien ?”, BRDA October 2021. That post is cited by Th. Revet, “Le contrat d’adhésion”, RDC 2026, no. 3, p. 198, fn. 28. ↩
  3. CA Toulouse, 1st civil chamber, section 1, 10 September 2024; the judgment has not been published and is known only through the Cour de cassation’s decision (§ 9). ↩
  4. On the Commercial Chamber’s reliance on the legislative history of the Ratification Act, see Th. Revet, “Le contrat d’adhésion”, in the special issue “Réforme du droit des obligations. On s’était dit rendez-vous dans 10 ans”, RDC 2026, no. 3, p. 194 ff., RDC203h9, esp. no. 12, p. 198, observing that the Court “simply and purely relied on the legislative history”, without citing Article 1105, paragraph 3, of the Civil Code or explaining why the provisions would be incompatible. ↩
  5. Cass. com., 26 January 2022, no. 20-16.782, F-B; S. Tisseyre, D. 2022, p. 539; H. Barbier, “L’article 1171 du code civil est évincé par les textes spéciaux de lutte contre les clauses abusives”, RTD civ. 2022, p. 124; M. Behar-Touchais, “La résolution du conflit des textes sur le déséquilibre significatif. À propos du non-cumul entre l’article L. 442-6, I 2° du Code de commerce et l’article 1171 du Code civil”, JCP G 2022, no. 15, study 494. ↩
  6. Th. Revet, op. cit., no. 12, p. 198. ↩
  7. G. Chantepie, “Le déséquilibre significatif de droit commun réduit à la portion congrue”, JCP E 2022, no. 12, p. 34 (HAL). ↩
  8. Act no. 2026-796 of 18 August 2026, Art. 54; L. Thibierge, “Repeated tenders and order cuts: two new restrictive practices under French law”, thibierge.law, 1 September 2026. ↩