Decree no. 2026-741 of 6 August 2026 laying down various measures to clarify and modernise arbitral procedure, JORF no. 0183 of 7 August 2026, text no. 11

Fifteen years after the decree of 13 January 2011, Book IV of the French Code of Civil Procedure has been revised. Decree no. 2026-741 of 6 August 2026, published in today’s Journal officiel, will enter into force on 1 January next. Its title states its ambition: “various measures to clarify and modernise arbitral procedure”. It is not the long-awaited overhaul of French arbitration law but, more modestly, the first of the three stages announced by the Minister of Justice on 8 April 2025, during Paris Arbitration Week¹.

By way of reminder, a working group co-chaired by François Ancel and Thomas Clay delivered in March 2025 a report setting out forty proposals, together with a draft Arbitration Code of one hundred and forty-six articles². The Chancellery drew from it a three-stage method: a decree gathering the points of consensus, a round of consultations on the debated questions, then a code. A commented draft decree was submitted to public consultation from December 2025 to 20 January 2026³. The text now published is the outcome of that first stage.

With no claim to exhaustiveness, let us briefly outline what the decree retains (1) and what it leaves aside (2) of the proposals made to it, before turning to its entry into force.

What the decree retains

Competence-competence. Article 1448 of the Code of Civil Procedure, the seat of the negative effect of the competence-competence principle, requires a State court seised of a dispute covered by an arbitration agreement to decline jurisdiction, unless the arbitral tribunal has not yet been seised and the agreement is manifestly void or manifestly inapplicable. The decree rewrites that text on two points. First, it fixes the moment at which the first condition is assessed: the arbitral tribunal has “not yet been seised” if it has not been seised as at the date on which the State court is itself seised. A later referral to the arbitral tribunal, in the course of the proceedings, therefore has no bearing on the State judge’s power to find the agreement manifestly void or inapplicable. Second, a stipulation to the contrary is no longer deemed unwritten: the parties may now depart from the rule, provided that the stipulation is “express and unequivocal”. The negative effect of competence-competence becomes a default rule.

The arbitration centre. The decree brings the “arbitration centre” into the Code, at Articles 1450, 1452 to 1454, 1456 and 1457, where the 2011 text knew only of “a legal person” or “the person entrusted with organising the arbitration”. That recognition is above all formal: the powers attached to the organisation of the arbitration, namely the appointment of arbitrators, challenge and extension of time limits, remain unchanged⁴.

It may also prove functional, as the new Article 1462-1 shows: it allows the arbitral tribunal, not the centre, to hear in a single arbitration claims relating to several contracts. The power does not belong to the centre, but it is under the arbitration rules of that centre that the power is exercised. Failing rules permitting it, consolidation remains possible unless a party objects and provided that the arbitration agreements are compatible.

The strengthened powers of the supporting judge. This is one of the most concrete contributions. Article 1468 allows any party to apply to the juge d’appui to render enforceable, on a provisional basis, an interim or conservatory measure ordered by the arbitral tribunal. The judge rules under the accelerated procedure on the merits and grants the application, save where enforcement would seriously prejudice the rights of one of the parties or would be contrary to public policy, read as international public policy in international matters (new Article 1506)⁵.

Article 1469 further transfers to the supporting judge jurisdiction over the production of documents held by a third party, hitherto vested in the President of the Judicial Court, and Article 1505, 5°, opens that avenue in international matters.

The astreinte. The case law of the Paris Court of Appeal had recognised the power of arbitral tribunals to order an astreinte, a periodic penalty payment designed to compel performance⁶. Article 1468-1 goes further: the liquidation of the astreinte, which until now went through the enforcement judge, may be carried out by the arbitral tribunal itself, by an award, for as long as it remains seised.

The award. A new Article 1478 adopts the judge-made definition of the award⁷: the act which “finally determines, in whole or in part, the dispute, whether on jurisdiction, on a procedural plea capable of bringing the proceedings to an end, or on the merits”. Articles 1480-1 and 1480-2 recognise the award drawn up in digital form and require, in that case, a qualified electronic signature.

Recognition and exequatur. The decree draws a sharper distinction between the two operations. Recognition gives the award effect in France, in particular the authority of res judicata, without permitting enforcement; exequatur makes it enforceable. Until now, only the latter was the subject of an organised procedure. Henceforth, a party may seek recognition for its own sake: as a principal application, by order of the Judicial Court, or incidentally, in the course of other proceedings (Article 1487-1 in domestic matters, Article 1516-1 in international matters).

Three rules complete the scheme. First, a refusal of exequatur or of recognition must be reasoned (Articles 1488 and 1517). Second, where the Court of Appeal is seised of a recourse, the First President or, once seised, the pre-trial judge may grant exequatur or recognise the award while the proceedings are pending (Articles 1498 and 1521), and dismissal of the recourse on the merits carries exequatur as of right or, where enforcement cannot be pursued, recognition (Articles 1498 and 1527). Lastly, as to proof, production of “the original” of the award gives way throughout to production of “a copy” satisfying the conditions required for its authenticity, a formula hospitable to the electronic award.

Recourse in domestic matters. Two modifications will attract attention. The first concerns annulment: where the Court of Appeal sets the award aside on a ground relating to the jurisdiction or lack of jurisdiction of the arbitral tribunal, it may no longer rule on the merits of the dispute. Evocation, peculiar to domestic arbitration, is thus confined to the other grounds of annulment, where it remains a default rule (Article 1493). The second aligns domestic arbitration with international arbitration: appeal and the action to set aside lose their suspensive effect (Article 1496), the First President or the pre-trial judge being able, however, to stay enforcement where it is liable seriously to prejudice the rights of one of the parties (Article 1497); Article 1484, paragraph 2, on provisional enforcement, disappears as a consequence.

Recourse in international matters. New Articles 1527-1 to 1527-5 endow the proceedings before the Court of Appeal with a procedural regime of their own: exhibits in a foreign language may be filed without translation, subject to a translation being ordered; the parties, witnesses, experts and counsel may express themselves in another language, with the assistance of an interpreter where needed; witness statements may be typed; and the Court may, finally, adapt the reasons for its decision, and the publicity given to it, to the requirements of the confidentiality of the arbitration.

From adjustment to suspension. A third point, less conspicuous, deserves mention. Articles 1497 and 1526 allowed the First President or the pre-trial judge to “stay or adjust” (arrêter ou aménager) enforcement of the award where enforcement was liable seriously to prejudice the rights of one of the parties. In their new wording, both texts leave him only the power to “suspend” enforcement, by an order now expressly not open to appeal. The power to adjust, which allowed enforcement to be made conditional, for instance on the sums at stake being placed in escrow, thus disappears in domestic matters (Article 1497) as in international ones (Article 1526). Neither the March 2025 report nor the draft submitted to consultation proposed that removal: both retained the formula “stay or adjust”⁸. Practice will tell whether the courts can rebuild, case by case, the flexibility the text no longer affords them.

The definition of international arbitration. Article 1504 substitutes “international economic interests” for “the interests of international trade”. The formula appears to broaden the criterion; how the courts will handle it remains to be seen.

What the decree leaves aside

As to form, first, the decree does not enact an Arbitration Code. Book IV of the Code of Civil Procedure remains, and with it the duality of the titles devoted to domestic and to international arbitration, where the report proposed the absorption of the former by the latter. The Arbitration Code is still announced, but for a third stage.

As to principles, next, it will be noted that the decree does not enshrine the “guiding principles” proposed by the report: independence and impartiality of the arbitrator, equality of the parties, effectiveness of the arbitration agreement, prevention of denial of justice. The reason is doubtless purely technical: it is not for a decree to lay down such principles, some of which, moreover, fall within the domain of statute.

As to substance, lastly, the decree as published does not retain certain of the report’s proposals, notably those relating to the removal of the written form requirement on pain of nullity for the domestic arbitration agreement (Article 1443), to the recasting of the subject matter of the dispute in the compromis (Articles 1442 and 1445), to the clarification concerning the arbitrator’s civic and civil rights (Article 1450), to the extension of the presumed waiver to grievances and pleas (Article 1466), and to the mention of an offer to arbitrate contained in a treaty (Article 1507).

Entry into force

The decree enters into force on 1 January 2027, under transitional provisions turning on three criteria (Article 22): the date on which the arbitration agreement was concluded, for Articles 1448, 1504 and 1506, 1°; the date on which the arbitral tribunal was constituted, for the rules on constitution, consolidation and the astreinte; and the date of the award, for all the provisions relating to the award, to its recognition, to its exequatur and to recourse. The text applies in Wallis and Futuna (Article 23).

Takeaways

• Decree no. 2026-741 of 6 August 2026, JO of 7 August 2026; entry into force on 1 January 2027, with transitional provisions turning on three criteria.
• The “arbitration centre” enters the Code of Civil Procedure.
• Negative effect of competence-competence: a stipulation to the contrary is now admitted, provided it is express and unequivocal (Article 1448).
• The supporting judge may render the arbitral tribunal’s interim and conservatory measures enforceable and rule on the production of documents held by a third party.
• Statutory definition of the award (Article 1478), digital award and qualified electronic signature (Articles 1480-1 and 1480-2), liquidation of the astreinte by an award (Article 1468-1).
• Recognition and exequatur are distinguished; a refusal must be reasoned.
• Removal of the suspensive effect of the action to set aside and of appeal in domestic matters.
• The judge may no longer “adjust” enforcement of the award, only suspend it, in domestic as in international matters (Articles 1497 and 1526).
• “International economic interests” replaces “the interests of international trade” (Article 1504).
• Before the Court of Appeal, in international matters: exhibits and oral argument in a foreign language, reasons and publicity adapted to confidentiality (Articles 1527-3 to 1527-5).
• No Arbitration Code, no guiding principles, no unification: that will be the object of the following stages.

Notes

1. G. Darmanin, announcement of 8 April 2025, Paris Arbitration Week: Ministry of Justice, “Vers une réforme du droit français de l’arbitrage”. ↩
2. Working group on the reform of French arbitration law (F. Ancel and T. Clay, co-chairs), Rapport et propositions de réforme du droit français de l’arbitrage, March 2025: forty proposals and a draft Arbitration Code in one hundred and forty-six articles. Among the first commentaries: S. Bollée, “Vers une réforme du droit de l’arbitrage ?”, D. 2025, no. 20, p. 960; M. Audit, “La réforme du droit de l’arbitrage : un voyage en terre inconnue”, JCP G 2025, no. 20, p. 869; “Quarante propositions pour réformer le droit de l’arbitrage”, JCP G 2025, no. 14, p. 621; the special issue of the Cahiers de l’arbitrage 2025-2, in particular P. Mayer, “Quelques commentaires sur le projet de réforme du droit français de l’arbitrage”, p. 407; J. Clavel-Thoraval, “Présentation de la proposition de réforme du droit de l’arbitrage”, RLDA 2025, no. 220, p. 26, and RLDC 2025, no. 242, p. 43. See also, in the same special issue: M. Henry, “Projet de réforme du droit français de l’arbitrage”; J. El Ahdab and J. Dalmasso, “Observations sur le projet de réforme du droit français de l’arbitrage”. For an international perspective: “Reform of French Arbitration Law: Proposals, Controversies and a (Swift) Way Forward”, Kluwer Arbitration Blog, 13 April 2025. ↩
3. Direction des affaires civiles et du sceau, Consultation publique sur le projet de décret réformant le droit de l’arbitrage, December 2025, closed on 20 January 2026. See D. Mouralis, “Réforme du droit de l’arbitrage : premier opus de la trilogie annoncée par le garde des Sceaux”, JCP E 2026, no. 5, p. 9, and “Projet de décret portant réforme du droit de l’arbitrage”, RTD com. 2026, no. 1, p. 68. See also J. Jourdan-Marques, “Chronique d’arbitrage : la Chancellerie présente son projet de décret”, Dalloz actualité, 26 January 2026. ↩
4. Compare, on the report’s proposals to that effect, S. Henry and J. El Hage, “Centre d’arbitrage, convention et sentence : réflexions sur les propositions de réforme du droit français de l’arbitrage”, Cahiers de l’arbitrage 2025-2, p. 369. ↩
5. On this question, O. Boskovic, “Le projet de réforme du droit de l’arbitrage et l’exécution des mesures provisoires prononcées par le tribunal arbitral”, D. 2025, p. 1522. ↩
6. CA Paris, 24 May 1991, Rev. arb. 1992, p. 636, obs. J. Pellerin; CA Paris, 7 October 2004, Otor, Rev. arb. 2005, p. 737, note E. Jeuland: ordering an astreinte is an “inherent and necessary extension of the judicial function”. Liquidation, by contrast, went through the enforcement judge: see, for instance, in the Groupe Antoine Tabet case, Cass. 1^re civ., 12 October 2011, no. 09-72.439, Bull. 2011, I, no. 164. The decree here enacts proposal no. 26 of the report. ↩
7. CA Paris, 25 March 1994, Sardisud, Rev. arb. 1994, p. 391, note Ch. Jarrosson; definition taken up by Cass. 1^re civ., 12 October 2011, cited above. The new Article 1478 alters only the order of its elements. ↩
8. The observation is due to J. Ortscheidt (LinkedIn, 7 August 2026). Compare Article 1526 as drafted by Decree no. 2011-48 of 13 January 2011 and the draft decree submitted to consultation in December 2025, both of which retained the power to “stay or adjust” enforcement of the award. ↩

L’article Arbitration: what the decree of 6 August 2026 changes est apparu en premier sur Louis Thibierge.

Note on Cass. com., 8 July 2026, no. 25-11.256, F-B

A professional seller owes a demanding duty to inform and advise. It will be recalled that, in 2022, the Cour de cassation held that the professional seller of a motorhome could not confine itself to reminding its customer of what might have seemed self-evident: « Mind the weight. Every additional accessory reduces the payload ».

For the Cour de cassation, « a professional seller owes, before the sale, a duty to advise which requires it to enquire into the buyer’s needs so as to be in a position to inform him whether the goods offered are suited to the intended use »¹. In other words, our professional seller should have enquired into the buyer’s specific needs (here, a family road trip across the American continent) in order to advise him for or against buying the motorhome.

That solution, handed down under the former law of contract, would no doubt bear clarification under the new law, since article 1112-1 of the French Civil Code deals only with information (as opposed to advice) and, above all, draws no distinction according to whether the seller is a professional. Besides, the duty to inform under article 1112-1 is pre-contractual and mandatory. It is not attached to any statutory obligation specific to the contract (unlike former article 1147) or to sale (articles 1602 et seq. of the Civil Code).

By a judgment of 8 July 2026, the Commercial Chamber of the Cour de cassation, presided over by Vincent Vigneau, rules – applying the former law – on the limits of the duty to inform and advise borne by the professional seller.

The facts

In 2014, a company called Le Béton mobile Janky (BMJ) bought a new Liebherr tracked excavator from a company called Soreloc.

The machine failed to perform, the judgment giving no further detail.

BMJ sued Soreloc, its seller, and Liebherr France, the manufacturer, seeking termination of the sale and damages: repayment of the price (EUR 527,600), the cost of repairs (EUR 97,065) and compensation for loss of use. The Commercial Court of Pointe-à-Pitre dismissed its claims on 17 March 2023.

BMJ’s claims were dismissed by the Basse-Terre Court of Appeal on 5 December 2024.

The appellate judgment² sheds light on the facts of the case. It reveals that the excavator had been acquired as part of a tax-driven investment scheme and, above all, that its breakdowns were caused not by the machine but by the way it was used: BMJ drove it. The manufacturer’s data showed that travelling accounted for 20.7% of operating time, three times the standard for the category, and up to sixteen kilometres covered in three weeks. The court-appointed expert concluded that the excavator was « not suited to operating in the environment for which its owner intended it ». A tracked excavator is built to dig, not to drive.

Should the seller have warned the buyer? The Court of Appeal held that it should not, since the buyer had never expressed any such need: « in the absence of any evidence of a specific request to that effect from BMJ, Soreloc was under no obligation to draw its customer’s attention to the existing limitations as regards travelling, a point which is by its very nature quite secondary ». The contrast with the 2022 judgment is striking: where the seller had to enquire into the needs of a lay buyer, it is here for the professional buyer to state its own.

The Court of Appeal had, moreover, set aside the specialisation test, holding that « BMJ is […] wrong to submit that this exclusion of the duty to inform and advise is confined to the case where seller and buyer share the ‘same specialisation’ ».

The cassation appeal

The buyer therefore appealed to the Cour de cassation on a single ground comprising seven limbs. Six were dismissed without specific reasons, pursuant to article 1014, paragraph 2, of the Code of Civil Procedure³.

The first deserved closer attention. The appeal argued that « a professional seller is released from its duty to inform and advise vis-à-vis a professional buyer only where the latter carries on the same specialisation ».

Now, the appeal contended, seller and buyer were not of the same specialisation: the latter operated a quarry, whereas the former merely sold equipment. It followed, according to the buyer, that the professional seller owed it a duty to inform and advise.

The Basse-Terre Court of Appeal was therefore criticised for having ruled as follows: « by confining the seller’s duty to inform and advise vis-à-vis a professional buyer to the case where the latter’s competence does not give it the means to appreciate the exact scope of the technical characteristics of the equipment purchased, by relying on BMJ’s competence alone and by refusing to take account of the fact that its specialisation differed from that of Soreloc »⁴.

In other words, the appeal adopted one test, that of the same specialisation, and rejected another, that of competence.

Which was to prevail?

The decision

Dismissing the appeal, the Cour de cassation restates a classic formula, already laid down in judgments handed down in 2014 concerning a forestry harvester⁵ and in 2017 concerning a construction loader⁶: « the seller’s duty to inform and advise its customer as to whether the equipment sold is suited to the use for which it is intended exists vis-à-vis a professional buyer only in so far as the latter’s competence does not give it the means to appreciate the exact scope of the technical characteristics of the equipment in question ».

Nihil novi sub sole.

Here, however, lies the novelty: the Commercial Chamber decouples competence from specialisation. Until now, case law had generously extended the benefit of the duty to inform and advise to the « professional of a different specialisation » (see O. Barret and Ph. Brun, Rép. civ. Dalloz, s.v. « Vente : effets », February 2026, no. 732).

In the judgment under review, that position appears to shift, competence alone being enshrined at the expense of specialisation.

For the Court, it matters not that the two contracting parties are of different specialisations. For specialisation is no more than an indication of competence, and it is competence that determines whether the duty to inform and advise serves any purpose.

Now, in the case at hand, the buyer had been operating a quarry for fourteen years and already owned a hydraulic excavator, a Komatsu PC490 assigned to that same quarry. Better still: the seller had framed its offer by comparing the two machines, and had pointed out that the Liebherr was six tonnes heavier.

Accordingly, our buyer was competent, in that it had the « means to appreciate the exact scope of the technical characteristics of the equipment in question », from which it follows that there was no point in the seller providing information and advice about the equipment being bought. Competence is assessed by reference to the technical characteristics of the equipment in question, not in the abstract. Had the thing sold been a printer or a management software package, the outcome would probably have been different.

The Commercial Chamber, faithful to its pragmatic approach, concludes that the Court of Appeal « was not required to enquire whether [the seller’s] specialisation differed from that of Soreloc ».

Thus, as the headnote published on the Cour de cassation’s website puts it, the duty to inform and advise « is not owed to a professional buyer possessing the competence to appreciate the exact scope of the technical characteristics of the equipment, without any need to enquire whether its specialisation is the same as or different from that of the seller ».

Competence 1 – Specialisation 0.

Significance

The Court thus prefers a practical, concrete assessment of actual competence over a more theoretical approach based on identity of specialisation, doubtless more predictable but potentially less just.

The movement is reminiscent of the one begun in relation to the pre-contractual duty to inform under article 1112-1 of the Civil Code, which the Commercial Chamber⁷, followed by the Third Civil Chamber⁸, has confined to what is strictly necessary. Information is owed only where it is of use.

Does this sound the death knell for the specialisation test?

Not necessarily. First, as noted above, the judgment concerns only the duty to inform and advise in contracts concluded before the 2016 reform came into force.

Second, the same-specialisation test continues to be applied to the warranty against latent defects. Building on article 1643 of the Civil Code, which says nothing of the buyer’s specialisation, case law holds that « a clause limiting or excluding the warranty against latent defects may be relied upon against a professional buyer of the same specialisation as the party selling the thing to it »⁹.

There is nothing, however, to prevent one from imagining that the movement will be completed on the ground of the special law of sale, and that the validity of clauses excluding or limiting the statutory warranty against latent defects will come to be assessed by reference to the buyer’s competence rather than its specialisation.

Takeaways

• The seller’s duty to inform and advise as to whether equipment is suited to its intended use is owed to a professional buyer only where the latter’s competence does not enable it to appreciate the exact scope of the equipment’s technical characteristics.
• Whether seller and buyer share the same specialisation is irrelevant; what matters is competence.
• The solution applies to the duty to advise. It does not extend to the enforceability of clauses limiting or excluding the warranty against latent defects, where the same-specialisation test remains, for the time being.

Notes

1. Cass. civ. 1^re, 11 May 2022, no. 20-22.210; L. Thibierge, « Surcharge pondérale et obligation de conseil : quand le road trip fait long feu », RDC 2022, no. 3, p. 38. ↑
2. CA Basse-Terre, 2nd Civil Chamber, 5 December 2024, no. 23/00420. ↑
3. Article 1014, paragraph 2, of the Code of Civil Procedure: « Any formation may also decide not to give specific reasons in answer to one or more grounds that are inadmissible or manifestly not of a nature to lead to quashing ». ↑
4. Emphasis added. ↑
5. Cass. com., 14 January 2014, no. 12-26.109. ↑
6. Cass. com., 22 March 2017, no. 15-16.315. ↑
7. Cass. com., 14 May 2025, no. 23-17.948. ↑
8. Cass. civ. 3e, 27 November 2025, no. 23-18.439. ↑
9. Cass. civ. 3e, 4 March 2021, no. 20-10.657. ↑

L’article The professional seller’s duty to advise: competence 1 – specialisation 0 est apparu en premier sur Louis Thibierge.

By a press release dated 16 July 2026, Paris Place de Droit announced the creation of its Strategic Advisory Board (Comité d’orientation stratégique), designed to involve leading figures of the Paris legal community in its long-term projects.

Conceived as a catalyst for legal and strategic thinking, at the crossroads of practice, public policy and the transformations of the law, the Board shapes the association’s intellectual output, identifies contemporary legal issues and defines its scientific roadmap.

Professor Louis Thibierge is delighted to serve on the Board alongside:

• Soraya Amrani Mekki, Professor of Law, Chair of the Board of Directors of the INSP – Institut national du service public;
• Valence Borgia, Partner (Medici Law Firm), Secretary General of Paris Place de Droit;
• Maximin de Fontmichel, Professor of Private Law, Université Paris-Saclay;
• Stéphanie Fougou, Secretary General, Chairwoman of the Board, AEJE – European Association of Company Lawyers;
• Jòan Gondolo, Associate Professor of Private Law, Sorbonne Law School;
• Tarik Lakssimi, Professor of Law, consultant, arbitrator, avocat, Head of Research at the École nationale de la magistrature;
• Delphine Michot, Partner, Cleary Gottlieb Steen & Hamilton LLP;
• Patrick Sayer, President of the Paris Economic Activities Court and of Paris Place de Droit;
• Stéphanie Smatt Pinelli, General Counsel (Broadcom), Secretary General of Paris Place de Droit.

The press release is available on the Paris Place de Droit website.

L’article Professor Louis Thibierge joins the Strategic Advisory Board of Paris Place de Droit est apparu en premier sur Louis Thibierge.

Cass. civ. 3e, 25 June 2026, no. 24-18.064, FS-B

Summary: The employer’s right to terminate a lump-sum construction contract at will, which Article 1794 of the French Civil Code grants subject to full compensation of the contractor, does not deprive him of the possibility of terminating the contract under the general law of contract, by relying on the seriousness of the contractor’s breaches.

“You say to-may-to, I say to-mah-to“, sang Ella Fitzgerald and Louis Armstrong, to lyrics by Ira Gershwin, before concluding: “Let’s Call the Whole Thing Off“.

Some words are polysemous, and they sometimes lead the layman – and even the lawyer – astray. Résiliation is one of them.

In one sense, it denotes the unilateral decision to bring an open-ended contract to an end, as permitted by Article 1211 of the Civil Code.

In another, it describes termination for breach under Article 1224 of the Civil Code, where such termination happens not to operate retrospectively, as provided by Article 1229 of the same Code.

In yet another sense, résiliation refers to the power of revocation which the law confers on a party, allowing it – by way of derogation from the general law – to bring a contract to an end, even a fixed-term contract, without having to allege any breach on the part of its counterparty.

One thinks first of the ad nutum revocation of Article 2004 of the Civil Code, which allows the principal to terminate the mandate at any time.

One also thinks – and this is the heart of the decision under discussion – of Article 1794 of the Civil Code, which provides: “The employer may terminate, by his sole will, the lump-sum contract, even though the works have already begun, by compensating the contractor for all his expenses, all his works, and everything he might have earned in the undertaking“.

In other words, the employer may bring the contract to an end without having to establish any breach whatsoever on the part of the lump-sum contractor. Such termination for convenience does violence to the binding force of contracts, but it comes at a price. The employer must compensate the contractor “for all his expenses, all his works, and everything he might have earned in the undertaking“.

In short: terminating without cause, yes. Terminating without paying, no.

Does this special provision oust the general law? The answer is not self-evident. Is the maxim specialia generalibus derogant really apt to resolve a conflict between a general rule enacted by the Ordinance of 10 February 2016 and a special rule adopted in 1804? One may doubt it¹. Consider the view, professed here and there, that Article 1793 of the Civil Code² – which prevents the lump-sum contractor from claiming a price increase in the event of a rise in the cost of raw materials or labour – derogates from Article 1195 of the Code on revision for unforeseeability (imprévision). That the text ought to derogate from it, so be it. That is the Sollen. Not the Sein. But that this should be explained by the idea that the legislature of 1804 intended to derogate from a rule which did not yet exist – that we cannot accept.

The same dialectic runs through the decision handed down on 25 June by the Third Civil Chamber of the Cour de cassation³.

In the case at hand, a Polynesian company set out to build a supermarket in Tahiti. The plumbing package was entrusted to a contractor for a global, lump-sum price.

As a result of the Covid-19 pandemic, the site was shut down in March 2020. Contrary to what the Code suggests in matters of force majeure, the impossibility of performing does not vanish all at once: it dissipates by degrees. The resumption proved laborious: the safety coordinator’s protocol was considered too burdensome by the contractor, a site meeting was held in its absence, materials were not ordered – so much so that the employer placed the orders himself.

On 11 May 2020, the employer notified the contractor of “the termination of your contract with immediate effect“, listing a number of complaints. In that letter, it offered no compensation whatsoever within the meaning of Article 1794 of the Civil Code.

Termination for breach without compensation, then – not termination for convenience against payment of an indemnity.

Placed in liquidation, the contractor relied on Article 1794 of the Civil Code, seeking compensation for its loss, consisting essentially in its loss of profit.

The Mixed Commercial Court of Papeete dismissed the claim, holding that the termination, discretionary by nature, was in no way abusive.

The Court of Appeal of Papeete reversed. In the eyes of the lower court, Article 1794 of the Civil Code did indeed apply. It held that the right of termination “is exercised at the employer’s discretion, without his having to allege any fault on the part of the contractor“⁴. The complaints levelled against the contractor were immaterial: compensation was due “irrespective of whether the grievances relied upon were well founded“.

Thus, for the Polynesian judges, lump sum means Article 1794, and Article 1794 means compensation. The special ousts the general, and any termination of a lump-sum contract can only be a termination under Article 1794, giving rise to compensation, notwithstanding any breaches by the contractor.

That position is open to criticism. That a contractor dismissed for the employer’s convenience should be entitled to compensation for its loss is nothing but justice. It is the price of the employer’s freedom. But that a contractor whose own breaches caused the contract to be terminated should get off scot-free, and indeed be compensated by the employer, would be a Procrustean logic.

The appeal to the Cour de cassation argued – rightly, in our view – that the contractor’s breaches (delays, defective works, abandonment of the site) deprived it of any compensation under Article 1794 of the Civil Code, since the contract had not been terminated on that basis, but on the basis of former Article 1184 (termination for breach).

The Third Civil Chamber allowed the appeal and quashed the judgment.

On the basis of former Article 1184 and Article 1794 of the Civil Code⁵, the Cour de cassation first recalled that “the seriousness of a party’s conduct may justify the other party’s bringing the contract to an end unilaterally, at its own risk“⁶.

It then held, in a didactic formula, that “it follows from the combination of these provisions that the employer’s right to terminate a lump-sum contract unilaterally, provided for in Article 1794 of the Civil Code, does not deprive him of the possibility of terminating the contract under the conditions of the general law“.

In holding that compensation was due “irrespective of whether the grievances relied upon were well founded“, the Court of Appeal of Papeete violated those provisions.

In short: the special does not oust the general.

Under Article 1105, paragraph 3, of the Civil Code, the general rules are set aside only to the extent that the special rules derogate from them⁷; and derogation there must be. Here, however, there is no incompatibility whatever between termination under Article 1794 of the Civil Code and termination for breach. Article 1794 confers on the employer an additional option – that of walking away with nothing to reproach his counterparty with. Its purpose is not to deprive that creditor of the – general – right to sanction the non-performance it suffers. The privilege of the lump sum is not an immunity for the contractor.

The employer thus has the choice of weapons: either termination for cause, or termination for convenience – the latter against payment of an indemnity.

Hence the importance of the termination letter: its drafting is no mere formality. To serve notice, to give reasons, to refrain from offering an indemnity, is to place oneself on the ground of the general law; to say nothing of the grievances and to offer compensation is to place oneself on the ground of Article 1794. One must know which camp one is in.

Takeaways

• Article 1794 of the Civil Code is not exclusive of the general law: the employer retains the right to terminate a lump-sum contract for sufficiently serious breaches by the contractor.
• The stakes are financial: termination for convenience under Article 1794 requires compensation for loss of profit; termination for breach, exercised at the terminating party’s own risk, does not – provided the seriousness of the breach is established.
• Lower courts may not treat the grievances as immaterial on the ground that termination of a lump-sum contract is discretionary: they must examine them.
• Handed down on the basis of former Article 1184, the decision is nevertheless meant to apply under Articles 1224 to 1226 of the Civil Code.
• In practice, the termination letter determines the applicable regime: notice and reasons on the one hand, an offer of compensation on the other – but never both at once.

¹ To this effect, B. Boubli, Rép. civ. Dalloz, v° Contrat d’entreprise, no. 137, updated Dec. 2025, who sees in Article 1794 a derogation from the general law that is “more apparent than real”; M. Thioye, J.-Cl. Civil Code, arts. 1788 to 1794, fasc. 20, Marché à forfait, 2021, no. 70 et seq.; Ph. Le Tourneau, Droit de la responsabilité et des contrats, Dalloz Action, 2026/2027, no. 3311.104. Compare M. Faure-Abbad, “Le marché à forfait : une histoire des interprétations doctrinales de l’article 1794 du code civil”, in Mélanges en l’honneur de Jean Beauchard, LGDJ, 2013, p. 553.

² See for instance L. Thibierge, “La résistance de la force obligatoire du contrat à la révision pour imprévision”, RDC 2024, no. 4, December 2024, p. 121; “L’impact des conflits sur les contrats en cours”, Rev. jurisprudence commerciale no. 1, 28 February 2023 (proceedings of the Droit et Commerce conference, 12 Dec. 2022).

³ On this decision, see D. 2026, p. 1221; F. Dargent, “Marché à forfait : la résiliation peut résulter du droit commun des contrats”, Dalloz actualité, 2 July 2026; “Conditions de résiliation unilatérale d’un marché à forfait”, JCP E 2026, no. 27, act. 614.

⁴ CA Papeete, ch. com., 11 April 2024, no. 22/00044.

⁵ Surprising though this may seem, the contract having been concluded in 2019, it is explained by the fact that French Polynesia still applies the former law of contract.

⁶ A formula drawn from the Tocqueville decision (Cass. civ. 1re, 13 October 1998, no. 96-21.485, Bull. civ. I, no. 300), expressly referred to in the decision under discussion.

⁷ On the articulation of the general and the special, L. Thibierge, “De la vente et du contrat d’entreprise : fiat lux !”, RDC 2022.

L’article You say termination, I say termination est apparu en premier sur Louis Thibierge.

Note on Cass. com., 10 June 2026, no. 25-14.312, F-B

The intricacies of the law of limitation are reputed to be unfathomable. From the “thicket”[1] to the “sea serpent”[2] by way of the “chaos”[3], from the “dual time-limit” to the long-stop period, complexities abound.

One of them — and not the least — concerns the starting point of the extinctive limitation period. While the reform of 17 June 2008 considerably simplified matters by abolishing most of the special limitation periods, it opted for a “floating” starting point[4], which is not without raising certain questions.

In matters of civil liability, the starting point of the limitation period has, since 2008, been not the day of the damage, but the day on which the victim “knew or ought to have known” the facts enabling them to act, as provided by Article 2224 of the Code.

The rule is simple. Its application is sometimes less so, particularly where the damage manifests itself progressively. A recent decision bears witness to this, handed down by the Commercial Chamber of the Cour de cassation on 10 June 2026 and destined for the honours of the Bulletin.

In the case at hand, investors acquired, on the advice of two investment and wealth-management firms, several residential rental properties giving rise to tax reductions.

As is often the case, the expected profitability failed to materialise[5]. The rents did not cover the charges, and the resale of one of the properties was made at a loss.

In August 2020, the investors brought liability proceedings against their advisers for breach of their duty to advise.

The Aix-en-Provence Court of Appeal declared the action inadmissible as time-barred. In the view of the Aix judges, the investors were in a position to ascertain, “by comparing the income generated by the lettings with the charges they bore”, the impossibility of achieving the promised profitability, from the very first year of letting.

Yet the action had been brought in 2020, whereas the properties had been let as early as 2011. Accordingly, in the view of the lower courts, the action was time-barred, regardless of the fact that the deficits had subsequently worsened. The lower courts likewise treated the resale of the property at a loss as irrelevant.

Before the Cour de cassation, the investors challenged the time-barring of their action, arguing that, at the end of the first year of letting, they were not in a position to know the facts enabling them to act.

The Commercial Chamber, presided over by Vincent Vigneau, quashed the lower courts’ decision on the basis of Articles 2222 and 2224 of the Civil Code and Article L. 110-4 of the Commercial Code.

In the view of the High Court, “the investors’ awareness of a probable loss-making profitability of the operation at the end of the first year of letting did not characterise the materialisation of the damage for which compensation was sought”.

The focal point of the decision appears to lie in a single word: “probable”.

Indeed, at the end of the first year of letting, the damage was not established, but merely probable, so that the claimants could not be reproached for having remained inactive.

Since three decisions of 26 October 2022, the Third Civil Chamber has held that “in the case of tax-incentivised rental property investment, the manifestation of the damage for the purchaser can only result from facts liable to reveal to them the impossibility of obtaining the profitability anticipated at the time the contract was concluded”[6].

To the same effect, the Third Civil Chamber held, on 1 February 2024, that “in a tax-incentivised rental property investment operation involving a loan whose capital repayment was deferred for ten years, the starting point of the liability action brought by the purchaser against professionals for breach of their respective duties of information, advice or warning is the day on which the risk materialised, namely the day on which the purchaser learned that they would be unable to resell the property at a price enabling them to repay the borrowed capital”[7].

The decision of 10 June 2026 falls within this line of case law, the Commercial Chamber in turn aligning itself with the position established by the Third Civil Chamber. The starting point of the limitation period is neither the day the contract was concluded, nor the day of letting, nor even the day of the first loss-making financial year. It is the day on which the investor becomes aware of the impossibility of obtaining what was promised to them.

The solution appears well-founded: profitability is an elusive datum, and what is not profitable in the short term may become so in the long term. The investment in dispute, aimed at tax relief over several years, is set within the long run. Accordingly, a deficit at the end of a first year of letting reflects no more than a hazard. It reveals neither an “impossibility” nor any certain loss. Only the test of time will make it possible to become aware of that impossibility — unless the contract sets annual profitability thresholds.

It will be observed that, prudently, the Cour de cassation — which rules only on the law and not on the facts — leaves the fixing of this starting point in suspense. It will fall to the lower courts to determine from what moment the investors were aware of the loss-making character of their investment.

There is, then, no use in running: one must still set out at the right point.

Takeaways

In matters of tax-incentivised rental property investment, the starting point of the limitation period for an action based on breach of the duty to advise is not set at the first loss-making year of letting: a merely “probable” deficit does not constitute a certain loss.

The decision confirms the case law on the “floating” starting point, but leaves that starting point undetermined — a matter for the court of remittal to fix.

[1]Senate information report no. 338.

[2]A. Bouscavert, note on Cass. com., 10 June 2026, no. 25-14.312, Dalloz actualité, 24 June 2026.

[3]A. Bénabent, “Le chaos du droit de la prescription extinctive”, Mélanges Louis Boyer, PU Toulouse, 1996, p. 123.

[4]Ph. Malaurie, La réforme de la prescription civile, Defrénois 30 Oct. 2008, p. 2029.

[5]Cf. L. Thibierge, “De la rentabilité économique”, Revue des contrats 2023, no. 1, p. 59; “Défiscalisation : du miroir aux alouettes”, Revue des contrats 2023, no. 3, p. 37; “Quand l’investissement locatif s’avère déceptif”, Revue des contrats 2026, no. 2.

[6]Cass. civ. 3^e, 26 October 2022, no. 21-19.898; Cass. civ. 3^e, 19 February 2026, no. 24-11.109.

[7]Cass. civ. 3^e, 1^er February 2024, no. 22-13.446.

L’article Limitation No Use Running — One Must Set Out at the Right Point est apparu en premier sur Louis Thibierge.

Note on Cass. com., 17 June 2026, no. 24-13.306, FP-B+R

In a decision delivered by the full bench of the Chamber and destined for the honours of both the Bulletin and the Annual Report, the Commercial Chamber of the Cour de cassation, presided over by Vincent Vigneau, last Wednesday answered a question of considerable practical importance.

Where a fake-IBAN scam has occurred, whom should the law favour — the debtor who has paid the fraudster, or the creditor who has received nothing?

Faced with this question, some thought to invoke the doctrine of the apparent creditor under Article 1342-3 of the French Civil Code, which provides that « payment made in good faith to an apparent creditor is valid ».

Applied to the letter, the rule would make payment to the fraudster a discharging payment. The debtor could not be compelled to pay a second time. The creditor, however, would be sorely aggrieved, having delivered goods or rendered services without receiving any payment.

This dilemma called for a clear answer from the Cour de cassation, so divided was the case law of the lower courts.

On 17 June 2026, the Commercial Chamber of the supreme court held that « a third party who usurps the creditor’s identity is not an apparent creditor, within the meaning [of Article 1342-3 of the Civil Code] ».

It follows that the victim of the « fake-IBAN scam » is not discharged. Our deceived debtor will have to pay its true creditor a second time.

On the facts, the case was of a regrettable banality — and will no doubt stir a few memories among the participants in the 2025 Willem C. Vis Moot.

In May 2018, Petrogarde, a company specialising in the supply of combustible products, was approached by Eazybunker, a commercial intermediary, to supply gas oil to the vessel Afthonia, on behalf of a third company, Sea Fleurs, during a port call at Marseille. Delivery took place on 19 May 2018; an invoice for EUR 103,375.64 was issued.

On 22 May 2018, Eazybunker, the intermediary, received an email from an address « differing by only a single letter » from Petrogarde’s genuine address, together with an invoice and bank account details (a RIB).

The intermediary forwarded these documents to Sea Fleurs on 23 May and 4 June.

On 8 June 2018, Sea Fleurs complied and transferred the funds to a fraudster’s account.

The funds could never be recovered.

Petrogarde, the unpaid creditor, then sued Sea Fleurs for payment of the price and, in the alternative, Eazybunker for damages.

At first instance, the Marseille Commercial Court ordered Sea Fleurs to pay.

That decision was reversed on appeal, the Aix-en-Provence Court of Appeal preferring to discharge the debtor. On the basis of Articles 1342-2 and 1342-3 of the Civil Code, the Aix court held that Sea Fleurs « could legitimately believe, when making payment on 8 June 2018 […], that it was dealing with its creditor Petrogarde, having regard to the circumstances of the transaction ».

This is the focal point of the appellate decision: the immaculate innocence of the solvens.

Since Sea Fleurs had never been in direct contact with Petrogarde, everything passing through Eazybunker, « it was not for it to verify the validity of the email address ». Moreover, examining the bank details alone, associated with the account holder (« SAS Petrogarde »), could not have enabled our victim to « detect a fraud ».

Hence the Court of Appeal’s conclusion: since the debtor could be charged with neither negligence nor disloyalty, its payment was discharging.

On its face, the lower courts’ reasoning rested on Article 1342-3 of the Civil Code, which stems from the Ordinance of 10 February 2016. That provision, which carries forward the former Article 1240 (which already validated payment made in good faith « to the person in possession of the claim […], even though that possessor is subsequently evicted »), is one embodiment of the doctrine of appearance — a doctrine that gives effect to certain irregular acts because the counterparty could not legitimately know that it was dealing with an unauthorised person, whether the apparent agent (Article 1156 of the Civil Code: « An act performed by a representative without authority or beyond his authority is unenforceable against the represented person, unless the third party contracting with him legitimately believed in the reality of the representative’s powers, in particular by reason of the conduct or statements of the represented person ») or the apparent creditor.

It remains to be agreed what an « apparent creditor » is.

The Court of Appeal had adopted a broad understanding of it. In its eyes, the apparent creditor was the fraudster. Why? Because, apparently, he was the creditor. His email address was, give or take a single letter, that of the true creditor. His bank details read « SAS Petrogarde ». To all appearances, he was the creditor.

This is not inaccurate. The appearances were plainly deceptive for the debtor.

Indeed, some lower courts have already invoked this doctrine of the apparent creditor to discharge the deceived solvens(see in particular Créteil Commercial Court, 22 July 2025, no. 2024F00526; Montauban Commercial Court, 28 May 2025, no. 2024005963). Conversely, other lower courts have refused to recognise the fraudster as an apparent creditor (Strasbourg Judicial Court, summary proceedings, 27 Nov. 2024, no. 24/00409), so that the question called for an answer from the Cour de cassation.

In equity, the solution adopted by the Aix-en-Provence judges is understandable. Since one must choose between two evils, some may be tempted to prefer the solvens to the unpaid creditor. It is true that condemning the solvens to pay a second time, with no real prospect of ever recovering from the fraudster, may seem harsh.

Conversely, it is just as iniquitous to deprive the creditor of any recourse against the debtor. A business that performs without receiving payment may suffer drastic consequences.

Beyond these ethical considerations, it is the rule of law itself that appears to condemn the Court of Appeal’s position of discharging the solvens deceived by appearances.

Now, Article 1342-3 of the Civil Code, a provision concerning payment, succeeds the former Article 1240 of the Civil Code, which provided: « payment made in good faith to the person in possession of the claim is valid, even though that possessor is subsequently evicted ».

One then understands that the apparent creditor is the person who is « in possession of the claim ». The formula is perhaps not entirely limpid, but the idea underlying it is clear. The apparent creditor exists only by comparison with the true creditor. The notion of apparent creditor is meaningful only where two persons could lay claim to the status of creditor. Such is the case, in particular, with the assignment of a claim. If the debtor has not been notified of the assignment, it may validly discharge its debt into the hands of the assignor, even though the latter is no longer the creditor (Article 1324 of the Civil Code).

In short, the notion of apparent creditor is intended to operate only where several persons could claim the status of creditor and the debtor, in good faith, mistakes one for another.

It is not intended, a contrario, to produce its effects where a person having no right to the claim, never having been in possession of it, succeeds by unlawful means in passing himself off as the creditor.

This is the meaning of the Cour de cassation‘s holding: « a third party who usurps the creditor’s identity is not an apparent creditor within the meaning of this provision ».

The Court went on to make clear that Sea Fleurs, « which knew that its creditor was Petrogarde, had not paid the sum due to an apparent creditor, but to a person fraudulently passing himself off as Petrogarde ».

In holding otherwise, the Court of Appeal misapplied the provision, hence the quashing on the basis of Article 1342-3 of the Civil Code.

Two situations must therefore be distinguished: error as to the person of the creditor; and error as to the creditor’s bank details.

In the first case — the only one covered by Article 1342-3 of the Civil Code — the debtor faces several putative creditors and discharges into the hands of the wrong one.

In the second, the debtor has only one creditor, is not mistaken as to the person of that creditor, but is deceived by someone passing himself off as the creditor.

Our cheated debtor was not mistaken as to its creditor.

The Court of Appeal’s error was to focus on a single criterion: the debtor’s good faith. Plainly, Sea Fleurs had committed no fault. It was never mistaken as to the identity of its creditor. It knew full well that it owed the price to Petrogarde. It was mistaken, following a fraudulent scheme, as to the payment details — which led it to transfer the funds to a third party.

Article 1342-3 governs error as to the person of the creditor, not error as to the payment details. The fraudster who usurps the creditor’s identity gives rise to no distinct apparent creditor: he merges into the true creditor. There are not, here, two creditors — one real, the other apparent — between whom the debtor might be mistaken; there is only a single, perfectly known creditor, and a fraudster who diverts payment away from him.

The solution thus appears technically sound.

It also aligns with the case law of the Conseil d’État which, faced with the same fraud committed to the detriment of a public purchaser, had refused the public entity the benefit of the apparent creditor (CE, 21 Oct. 2024, no. 487929).

Finally, if the solution may seem harsh on the debtor who committed no fault, it must be stressed that the creditor committed none either. It would be no fairer to deprive the innocent creditor of its right to payment.

The debtor so ordered is not, however, without recourse: beyond the (often illusory) action against the fraudster, it may seek to hold the negligent intermediary liable, just as the Conseil d’État allows against a contracting party that contributed to the fraud.

Takeaways

• A debtor who falls victim to a fake-IBAN scam cannot rely on the doctrine of the apparent creditor.
• He who pays badly — even under a fraudster’s influence — pays twice.

L’article The fake-IBAN scam: « He who pays badly, pays twice » est apparu en premier sur Louis Thibierge.

Note on Cass. com., 13 May 2026, no. 25-10.491

The oxymoron drawn from Rodrigue’s monologue in Corneille’s Le Cid is a perennial delight for students sitting their baccalauréat.

It also captures rather well a decision handed down on 13 May by the Commercial Chamber of the Cour de cassation, presided over by Vincent Vigneau, and destined for publication in the Bulletin.

At stake: the interpretation of contracts, and more particularly the maxim interpretatio cessat in claris, enshrined since 2016 in Article 1192 of the French Civil Code — here inapplicable ratione temporis, the contract having been concluded before 2016.

That text, which merely codifies a time-honoured rule the Court had notably restated in the famous Veuve Foucaulddecision of 1872, provides: « On ne peut interpréter les clauses claires et précises à peine de dénaturation » (clear and precise clauses may not be interpreted, on pain of distortion).

In other words, it forbids the judge from interpreting what is clear and precise.

The point seems settled, and stamped with common sense.

To interpret what is clear and precise is to betray the parties’ will and to substitute for it the judge’s own sense of equity.

So be it: what is clear and precise admits of no interpretation. Conversely (a contrario), once a clause is ambiguous, the door opens and the judge may interpret it.

This binary reasoning may seem reassuring.

Yet, put to the test, the rule is not always so easy to apply. At what point is ambiguity sufficient for the judge to interpret the contract?

Scholarship sometimes defines this ambiguity in the negative: a clause is clear when it is « susceptible d’un seul sens » (capable of a single meaning); it becomes open to interpretation when it is « susceptible de plusieurs sens » (capable of several meanings) (J. and L. Boré, La cassation en matière civile, Dalloz Action, 6th ed. 2023/2024).

But here too the question lingers. Is it enough for one party to argue, without patent bad faith, that it understands the clause in a sense different from its opponent’s, for the clause to be “capable of several meanings” and therefore open to interpretation? In other words, is ambiguity to be assessed objectively or subjectively?

The underlying question proves awkward: can one know whether a clause is clear and precise without first having interpreted it? Indeed, to determine whether a clause is open to interpretation, must the judge not first interpret it, in order to establish whether it is capable of one or of several meanings? (compare J. Monéger, « De la dénaturation d’une clause contractuelle ou de l’art du clair-obscur », Loyers et copr. 2019, no. 11, repère 10).

In the present case, the difficulty lay in how the ambiguity was characterised.

An economic interest grouping (GIE) entrusted a service provider with running its telephone-reception service. A 2014 amendment set a three-year term. A handwritten note was added in the margin, stipulating « reconduction tacite par période de 1 an » (tacit renewal for one-year periods) and coupling it with a right of termination.

The GIE terminated the contract at the end of the first year. The provider considered itself the victim of an early termination. In short, the dispute turned on a single question: was the contract for a fixed three-year term (as the provider argued), or could it be freely terminated (as the GIE contended)?

The Lyon Court of Appeal (10 October 2024) began by conceding that the wording of Article 6 of the amendment, supplemented by the handwritten note, « paraît signifier que le contrat est conclu pour une durée ferme de trois années » (appears to mean that the contract was concluded for a firm three-year term) — and that this reading « donne foi, de prime abord, à la lecture retenue » (lends credence, at first sight, to the reading) put forward by the provider.

However, taking into account an email sent more than six months after the amendment, the Lyon court ultimately (in fine) adopted the opposite position.

That email of 21 May 2015, from the provider, read as follows: « Bonjour, voici l’avenant signé et modifié. Je vous confirme que nous avions intégré un engagement de 12 mois au lieu des 36 initiaux… » (Hello, here is the signed and amended document. I confirm that we had built in a 12-month commitment instead of the original 36…).

According to the GIE, it left « aucun doute quant à la volonté des parties, nonobstant le caractère ambigu de la mention manuscrite » (no doubt as to the parties’ intention, notwithstanding the ambiguous character of the handwritten note).

The Lyon court held that this email « démontre sans la moindre ambiguïté que la commune intention des parties a été de substituer à la durée initialement convenue de 3 ans, des périodes annuelles successives… » (demonstrates, beyond the slightest ambiguity, that the parties’ common intention was to substitute successive yearly periods for the initially agreed three-year term, with a right of unilateral termination at the end of each).

It inferred that, « en dépit des termes inappropriés et trompeurs de la mention manuscrite marginale » (despite the inappropriate and misleading terms of the marginal handwritten note, supposed to embody their common intention), the parties had agreed:

— that the amendment was concluded for an overall three-year term, divided into successive yearly periods;

— that either party could terminate the contract at the end of any such yearly period, subject to three months’ notice.

And, sensing full well that it was venturing into murky waters, the Court of Appeal denied engaging in any interpretation of the contract.

It put it thus: « la cour n’interprète pas le contrat, mais détermine quelle a été la substance de l’accord des parties, constitutive du negotium, au-delà de l’instrumentum défaillant… » (the court is not interpreting the contract, but determining the substance of the parties’ agreement — the negotium — beyond the defective instrumentum, owing to a marginal handwritten note that did not faithfully reflect their common intention).

One feels a certain unease on reading the Court of Appeal’s decision.

The lower-court judges do not appear to own up to the interpretive exercise they are performing.

Why?

No doubt because there was nothing to interpret. Since Article 6 of the amendment contained no intrinsic ambiguity, and no extrinsic ambiguity could be drawn from reading the clause together with the handwritten note, the clause — clear and precise — could not be interpreted.

Plainly, ambiguity cannot arise from setting the wording of the contract against an email sent six months later. Were it otherwise, it would suffice to write an email months or years after the contract to manufacture an ambiguity between the two, allowing the judge to interpret what, at the moment the parties’ wills met, was clear and precise.

Magritte’s « Ceci n’est pas une pipe » is not far off.

Yet this is what the Lyon court seemed to hold when it asserted that « la contestation de la portée de l’engagement commandait la recherche de la commune intention des parties » (the challenge to the scope of the undertaking called for a search for the parties’ common intention). On that view, it would be enough to go back on one’s word in a later letter to summon up the obscurity propitious to judicial interpretation.

As for the elegant but contrived distinction between interpreting and determining the « substance de l’accord des parties» (substance of the parties’ agreement), it scarcely holds. For what is interpreting a contract, if not revealing the parties’ will?

Like Molière’s Monsieur Jourdain, who spoke prose without knowing it, the Court of Appeal interpreted without knowing it — or under cover.

Hence the provider’s appeal to the Cour de cassation, arguing that the handwritten marginal note to Article 6 « complétait nécessairement, sans la contredire, la stipulation d’une durée ferme de trois ans… » (necessarily supplemented, without contradicting, the stipulation of a firm three-year term; the two provisions did not overlap, the first fixing the irrevocable term, the second governing the conditions of any later renewal).

Accordingly, absent any contradiction between the handwritten note (concerning tacit renewal) and the contract (which fixed the three-year term), no ambiguity — so the appeal ran — justified opening up a power of interpretation.

On the sole basis of former Article 1134 — the contract predating 2016 — the Commercial Chamber held that « les juges du fond ne peuvent interpréter les conventions que si celles-ci sont obscures ou ambiguës » (the lower courts may interpret agreements only where these are obscure or ambiguous).

Yet, the Court of Appeal had itself found the instrument to be unambiguous. By searching for the common intention where the wording sufficed, it violated the text. Never mind the vessel: to label the search for the parties’ common intention a « détermination du negotium » is, beyond the words, an act of interpretation all the same.

The articulation of the provisions confirms the analysis. While Article 1188 invites the judge to seek the common intention « plutôt qu’en s’arrêtant au sens littéral » (rather than stopping at the literal meaning of the terms), Article 1192 bars access to it so long as the terms remain clear and precise. In other words, the search for intention begins only once ambiguity is established.

The Cour de cassation’s decision to quash thus appears justified. One cannot manufacture a doubt the better to resolve it. Otherwise every contract would become ambiguous — through the force of an email, a witness statement, a circumstance — and its binding force would hang on nothing more than the judge’s goodwill.

Even though the natural inclination of a judge — or of an arbitrator — might lead him to prefer the interpretation he finds just over the one the contract’s terms command, Article 1192 of the Civil Code remains a dyke. Where the terms are clear and precise, interpretation is excluded.

The dyke still holds — at least in appearance. For must we not accept that « lorsque la Cour de cassation censure l’interprétation d’un contrat prétendument dénué de toute ambiguïté, elle fait prévaloir sa propre interprétation » (where the Cour de cassation quashes the interpretation of a contract supposedly free of any ambiguity, it imposes its own interpretation) (G. Chantepie and M. Latina, Le nouveau droit des obligations, Dalloz, 3rd ed. 2024, no. 511)?

In sum, interpretation remains a delicate art, and the little guide-âne (rule-of-thumb crib) dear to Carbonnier does not solve everything.

To be continued!

TAKEAWAYS

• A judge may not interpret a clear and precise clause;
• Where a clause carries no intrinsic ambiguity and acquires no extrinsic ambiguity when read together with another clause, it must be regarded as clear and precise;
• A judge may not rely on later exchanges to create, a posteriori, an ambiguity about what was clear a priori.

L’article This Obscure Light, Falling from the Stars est apparu en premier sur Louis Thibierge.

Abstract

For the first time, it seems, the Cour de cassation has upheld the annulment of a contract for violence par abus de dépendance — duress arising from the abuse of a state of dependence — on the basis of article 1143 of the Civil Code. But at the cost of a highly idiosyncratic conception of duress, one that appears contra legem.

Introduced into the Civil Code by the Ordinance of 10 February 2016, article 1143 provides that “there is also violence where one party, abusing the state of dependence in which the other party stands towards it, obtains from the latter an undertaking to which it would not have agreed in the absence of such constraint, and derives from it a manifestly excessive advantage”.

This provision enshrines a variant of the defect of consent known as violence (duress), wrongly labelled “economic duress”. For our part, we shall avoid that misleading name, for article 1143 — contrary to the Senate’s attempted rewriting on the occasion of the ratification statute of 20 April 2018 — can capture every kind of duress, be it economic, emotional, corporate or any other.

We shall therefore call it, even if conceptual precision suffers for it, violence par abus de dépendance — duress by abuse of dependence.

This particular form of duress, doubtless less crude than physical violence but no less effective, is the fruit of a long judicial sequence.

Its starting point may be set in the year 2000, when the Court, without recognising the existence of such duress, confined itself to stating that “economic constraint relates to violence and not to lésion” (substantive unfairness of price).

The landmark decision was the Larousse-Bordas judgment of 2002, whose restrictive formula has passed into posterity: “only the abusive exploitation of a situation of economic dependence, carried out so as to take advantage of the fear of an evil directly threatening the legitimate interests of the person, can vitiate consent by violence”.

It will be recalled that, in Larousse-Bordas, the employee — who claimed she had been compelled to assign to her employer, at a low price, her rights in the collection of pocket dictionaries she had created — was unsuccessful, for want of proof. The diffuse fear of being part of the next “batch” of collective redundancies on economic grounds was not enough to establish so-called economic duress. The employer would have had to threaten the employee explicitly with dismissal for such duress to be made out.

And then? Then, next to nothing. Between Larousse-Bordas in 2002 and the reform of the law of obligations in 2016, so-called economic duress seems to have generated more academic commentary than case law.

Then came the reform, which enshrined violence par abus de dépendance in two stages.

First stage: the wording of article 1143 resulting from the Ordinance of 10 February 2016 provided that “there is also violence where one party, abusing the state of dependence in which the other party stands, obtains from the latter an undertaking to which it would not have agreed in the absence of such constraint, and derives from it a manifestly excessive advantage”.

Second stage: the ratification statute. Let us say so without mincing words: the senators were hostile to the text, which they sought to muzzle. First, by appending the epithet “economic” to “dependence”, so that only the abusive exploitation of an economic situation could be sanctioned. That proposal did not secure the assent of the deputies.

The senators did, however, obtain the addition of the words “towards it” (à son égard), the text now providing: “There is also violence where one party, abusing the state of dependence in which the other party stands towards it, obtains from the latter an undertaking to which it would not have agreed in the absence of such constraint, and derives from it a manifestly excessive advantage”.

The addition is anything but anecdotal. It considerably narrows the scope of the text. Henceforth, only the exploitation of a situation of dependence pre-existing between the parties can be taken into account.

The text thereby removes any risk of confusion between dependence and vulnerability.

Take a simple example: a company is in dire straits, owing a substantial debt to URSSAF or the DGFIP (the French social-security and tax authorities). A competitor, scenting a bargain, offers to buy its land or its machinery for 50% of their value. Predation, no doubt, but not violence within the meaning of article 1143, for the weaker party was not, before the contract, dependent upon the stronger.

Matters seemed clear, then… until this judgment delivered on 4 June 2026 by the Third Civil Chamber, which may appear contra legem.

In the case at hand, a couple of elderly and infirm Corsican wine-growers (the husband having suffered a stroke in 2017, the wife afflicted since the same year by neurocognitive disorders and Alzheimer’s disease) granted, on 26 August 2019, a rural lease (bail rural) to one of their sons and to the EARL (an agricultural limited-liability company) which he manages.

The lease covered 72 hectares of vines and orchards.

What is striking is the rent, extremely modest: about €10,000 per year for the vines and orchards alone (to which are added €300 per month for the buildings, the cellar and the wine-making equipment, and so on), whereas the average rent for the vines alone was assessed at between €72,000 and €86,400.

A good deal, or an abuse of weakness?

The father died on 4 October 2019, the mother on 17 January 2022.

Between those two dates, by writs of 28 and 29 December 2021 — the mother then still being alive and herself a defendant — their other son, acting in his capacity as heir and as a member of the lessor EARL, sued his brother for annulment of the lease.

The Rural Leases Joint Tribunal (tribunal paritaire des baux ruraux) of Bastia annulled the agreement on 20 October 2022. The Bastia Court of Appeal confirmed this on 28 February 2024, citing article 1143 of the Civil Code, but referring to “the abuse of dependence provided for by the civil law”.

An appeal on a point of law was brought by the brother who benefited from the so-favourable lease.

In substance, the ground of appeal levelled two complaints at the appellate judgment.

The first concerned the characterisation of “dependence” as required by article 1143. The ground argued that a state of dependence presupposes a situation of “subjection” of one person towards another — a situation that cannot be inferred merely from the fact that the faculties of the lessors, two elderly persons, were impaired.

Put differently, the first complaint lay in the Court of Appeal’s conflation of two concepts: vulnerability and dependence. It is true that the Court of Appeal had held that “the impaired faculties of the two elderly persons, one of whom was a party to the rural lease at issue, are deemed, at the decisive stage, to constitute a state of dependence”.

As for the second complaint, it concerned the requirement of threats. The appeal contended that “the abusive conduct of the contracting party who imposes its domination and proceeds to take advantage of the established state of dependence must manifest itself through threats or pressure on its part”. Yet, in the case at hand, the Court of Appeal had not been especially demanding as to the characterisation of duress. Under the guise of “objectivising a defect of consent” (in its own words), the Bastia court had essentially inferred duress from the mere finding of lésion. Judge for yourselves: “as regards the abuse of that state of dependence, the relatively derisory consideration, in the light of the usages prevailing in the wine-growing sector in Corsica, suffices on its own to demonstrate the abuse of the dependence of Mr and Mrs [I]/[J]”.

In fact, the Court of Appeal had required no demonstration of duress whatsoever. Neither threat, nor fear, nor pressure. It had performed a kind of logical short cut, inferring duress from dependence (if one may put it that way) and from the imbalance affecting the contract. In other words, the Bastia court holds that, where the contract concluded is imbalanced, it is the product of duress.

The Third Civil Chamber of the Cour de cassation answers in two sentences.

At paragraph 12, it states that “it is not necessary to establish the existence of positive acts of threat or pressure in order to characterise a defect of consent through violence within the meaning of [article 1143 of the Civil Code]”.

At paragraph 13, it holds that “the state of dependence towards the other contracting party, required by that last provision, may result from a state of vulnerability, known to that party, of which it takes advantage when concluding the contract in order to obtain a manifestly excessive advantage”.

Having laid down these new rules, the Court applies them to the case.

First step: the lessor parents were markedly impaired, so much so that “the impaired faculties of these two elderly persons did not allow them to grasp the extent and the import of the rural lease concluded on 26 August 2019”.

Second step: the son “maintained regular relations with his parents”, so that he could not be unaware of the state they were in.

Third step: the lease was heavily imbalanced, the rent being extremely modest (seven times less than the average rent, considering the vines alone).

Conclusion: “having thus shown that Mr [E] [Y] was aware of the general impairment of his parents’ discernment and thus of their state of vulnerability, the Court of Appeal was entitled to infer that, having regard to the circumstances in which the lease was signed, the lessors were in a state of dependence towards their son, and that he had abused it in order to obtain an advantage which it, in its sovereign assessment, held to be manifestly excessive, and it therefore rightly annulled the lease”.

The Court accordingly dismisses the appeal.

Admittedly, the judgment is one of dismissal, and the level of review is limited (the Court of Appeal “was entitled to infer”), which invites the commentator to caution.

But the solution adopted by the Third Civil Chamber may come as a surprise, on several counts.

First, because the Court conflates dependence and vulnerability. Article 1143 of the Civil Code sanctions only the abuse of dependence — not the exploitation of vulnerability. The clarification added in 2018, to the effect that the dependence must pre-exist between the parties, dispels the slightest doubt, if any there could ever have been: only the exploitation of the victim’s dependence towards the perpetrator is sanctioned. The legislature was, moreover, careful to specify that this amendment has an “interpretative character” (article 16, I, of the statute of 20 April 2018): deemed to have been part of the text from the outset, the requirement of a dependence between the parties was already binding from 2016. Dependence is assessed in the relationship binding the parties, and not in the contracting party considered in isolation.

Whether or not one agrees with article 1143 of the Civil Code, and whether or not one would have wished it more protective of the weak, is immaterial. The text permits annulment of the contract only where the perpetrator of the duress has exploited the dependence in which the victim stood towards it.

To assert, as the Court does, that “the state of dependence towards the other contracting party […] may result from a state of vulnerability, known to that party”, is a misreading and is contra legem.

Second, because the Court adopts an expansive conception of abuse. Once again it extends the scope of article 1143, by not requiring proof of pressure or threats. Once the abuse of dependence is inferred from the mere fact that the perpetrator obtained an imbalanced contract and was aware of the victim’s weakness, the burden of proof is greatly eased… but legal certainty is weakened.

If, on the moral plane, the result is understandable, legal orthodoxy suffers for it, and one may ask whether other mechanisms could not have been called upon, without any need thus to distort article 1143 of the Civil Code.

For, in truth, what remains of duress if one requires neither fear, nor threat, nor pressure? Is one not, in reality, sanctioning a qualified form of lésion?

Finally, the solution runs counter to the policy adopted by the Commercial Chamber, which has of late tended to promote legal certainty by restricting the scope of certain provisions of the “new” law of contract (contracts of adhesion, the pre-contractual duty to inform, and so on). On the very terrain of article 1143, the Commercial Chamber has indeed recently refused to characterise an abuse of dependence, the assignors having retained the freedom not to comply with the assignee’s demands.

To our knowledge, violence par abus de dépendance had until now remained largely theoretical. It had drawn more ink in the columns of the law reviews than in the judgments of the Cour de cassation. Setting aside a well-known decision concerning a lawyer compelled by his near-sole client to accept a reduction in his fees — a decision rendered under the former law — it seems to us that the Cour de cassation had never recognised the existence of violence par abus de dépendance.

The case law of the lower courts is scarcely more favourable to article 1143 of the Civil Code.

One will therefore remain wary of this judgment of the Third Civil Chamber, which appears to widen the scope of the text considerably, to the detriment of legal certainty.

L’article Violence par abus de dépendance (economic duress): A First — and a Misfire est apparu en premier sur Louis Thibierge.

Note on Cass. com., 3 June 2026, no. 24-19.612

Since 2016, Article 1225 of the French Civil Code has required the resolutory clause to “specify the undertakings whose non-performance will result in the termination of the contract”. One question has divided French legal scholarship for the past ten years: in order to satisfy that requirement, must each of the undertakings concerned be listed[1], or is it enough that they be identifiable[2]?

As a precaution, many contract drafters had taken to avoiding so-called “sweep” clauses altogether.

Was the precaution warranted?

That is the question just settled, in a decision of major importance — slated for publication in the Bulletin, in the Annual Report and in the Chamber Letters (FS-B+R) — by the Commercial Chamber of the Cour de cassation, sitting under the presidency of Vincent Vigneau.

A word on the facts. In 2018, beIN Sports was awarded by the LFP the right to broadcast certain Ligue 1 football matches, for a price of EUR 332 million. The contract is the same as the one giving rise to the much-discussed decision of the Paris Court of Appeal of 14 January 2026 on loss of profitability (see L. Thibierge, “Caducité, rentabilité, imprévision : et un, et deux, et trois zéro”, Lexbase Contrats, Responsabilité, Immobilier, May 2026).

This time, the dispute concerned another contract: the sub-licence concluded in 2020 between beIN Sports and Canal +, for an amount of EUR 330 million. More precisely, it concerned Article 3 (e) thereof, drafted in English, which provided for a resolutory clause to operate in the event of breach of a “material obligation” (translated as “obligation importante”or “substantielle”) that had not been remedied within thirty days.

The contract specified that “such immediate and automatic termination shall not be subject to any formality other than those mentioned in this clause, notwithstanding the provisions of Article 1225 of the Civil Code” — a formulation whose meaning is not entirely transparent.

Invoking a breach attributable to beIN Sports, Canal + triggered the clause and terminated the contract.

beIN Sports challenged not the operation of the resolutory clause but its very validity. According to it, because the clause failed to list the obligations whose breach would result in automatic termination, it lacked the requisite specificity and was therefore invalid.

BeIN Sports consequently asked the Paris Court of Appeal to declare the contract un-terminated, and sought specific performance.

The Court of Appeal (Paris, 31 May 2024, no. 22/14546) granted the application, holding that the resolutory clause was “null and void for want of determined object”. In the eyes of the Parisian judges, the resolutory clause — which allowed termination upon any breach of “a material obligation under the Sub-Licence Agreement (including the provisions of the Call for Tenders applicable to the present Sub-Licence Agreement)” — was excessively imprecise, having regard in particular to the fact that “interdependent contracts place upon the parties multiple and complex obligations”.

Canal + appealed to the Cour de cassation, arguing that the resolutory clause was perfectly valid notwithstanding its “sweep” formulation.

The appeal was upheld by the Commercial Chamber, on the basis of Articles 1224 and 1225, first paragraph, of the Civil Code. The decision below was quashed for failure to provide a legal basis, but only as regards the declaration of nullity of the resolutory clause and the costs ruling. The case was remitted to the Versailles Court of Appeal.

The reasoning unfolds in two stages.

The Commercial Chamber first recalls the position of the various chambers of the Cour de cassation under the pre-reform law of contract. It had been held that:

• the resolutory clause must be expressly provided for in the contract;
• the resolutory clause must express in unequivocal terms the parties’ shared intention to terminate the contract automatically;
• the resolutory clause may sanction only the breach of an obligation expressly stipulated in the contract;
• where the resolutory clause targets the breach of a specific obligation, it cannot apply to a distinct obligation.

By contrast, the pre-reform case-law did not require “that the resolutory clause list the obligations whose non-performance it sanctions; it merely requires that the parties to the contract be able to identify those obligations clearly”.

Noted. One might however wonder what to make of the last part of the sentence. What does it mean for the parties to be able to identify the obligations “clearly” when the clause itself does not do so clearly? Is not every interpretation, by its very nature, subjective?

In any event, the assertion does not exhaust the debate, since the sub-licence was concluded in 2020 — that is, under the new law of contract.

Now, the new Article 1225 of the Civil Code provides that “the resolutory clause specifies the undertakings whose non-performance will result in the termination of the contract”.

At first sight, the new rule, set in stone in statute, departs from the old rule, which was purely jurisprudential. One might therefore have expected the Cour de cassation to abandon its earlier case-law and hold that the next-generation resolutory clause must, on pain of nullity, list the undertakings whose breach will entail termination of the contract.

Yet that is not the option chosen by the Commercial Chamber.

The Chamber observes that “neither the preparatory works of Ordinance no. 2016-131 of 10 February 2016, nor the parliamentary debates leading to the adoption of Law no. 2018-287 of 20 April 2018 ratifying that Ordinance, reveal any intention on the part of the legislature to depart, as regards the conditions of validity of resolutory clauses, from the prior state of the law”.

This is a familiar piece of teleological reasoning, which consists in probing the preparatory works in order to infer the will of the “legislature”. The same reasoning had prevailed in the Green Day decision of 26 January 2022, to set aside Article 1171 of the Civil Code, and again in a recent Comuto decision of the Commercial Chamber (Cass. com., 13 May 2026, no. 24-17.137; see further L. Thibierge, “Requiem pour un contrat d’adhésion”, https://www.thibierge.law/requiem-pour-un-contrat-dadhesion/).

We had previously underlined the artificiality of probing the parliamentary debates of the ratification Law of 20 April 2018, given that the parliamentarians of 2018 are not the authors of the 2016 provisions, which were adopted by Ordinance. Probing their will is therefore no absolute guarantee. Moreover, even though the Senate Law Commission had, in 2018, taken the view that “sweep” clauses remained admissible under the new text[3], that was but one voice.

One notes that, this time around, the Commercial Chamber casts its net more widely, since it also probes the “preparatory works of the Ordinance of 10 February 2016”, without however specifying the scope of the corpus thus referred to.

In the Court’s view, if the new text did not intend to disturb the earlier solutions — if the “legislature” of 2016 codified at constant law — then sweep resolutory clauses remain valid.

For the Court, the verb “to specify”, in Article 1225, is to be understood as follows: “the requirement of specificity tends … to enable the debtor to identify, in a clear and unambiguous manner, the undertakings whose non-performance will entail automatic termination of the contract”.

Hence the rule set out in paragraph 11 of the decision: “This requirement is satisfied by a clause providing that any non-performance of certain obligations expressly stipulated in the contract will entail its termination, where the obligations concerned can be identified in a clear and unambiguous manner — it being immaterial that they are not listed in the said clause”.

And the Commercial Chamber adds: “A clause providing that any non-performance of any one of the obligations expressly stipulated in the contract will entail its termination is therefore valid, subject to that condition”.

The sweep clause, then, is not dead.

What matters is not that the clause itself list the obligations whose breach will trigger termination, but that those obligations be expressly stipulated in the contract and be identifiable without ambiguity within it.

The solution thus upholds the bulk of resolutory clauses currently in use — much to the relief of those who value contractual certainty.

The reach of the sole reservation of “clear and unambiguous identification” is, however, open to debate. If all it means is that the obligations must, in order to be sanctioned by the resolutory clause, be clearly and unambiguously identified in the contract, such that the debtor knows what it is bound to perform, then the requirement is not particularly demanding. And one cannot but wonder about the fate of certain obligations drafted in imprecise terms. Where the contract provides both that any breach of any one of the obligations may be sanctioned through the resolutory clause (a sweep clause) and that the debtor “shall develop synergies for the development of development opportunities” — or some equivalent piece of corporate newspeak — will it be held that the debtor can clearly and unambiguously identify the obligations whose breach will entail termination?

To be continued.

Takeaways

• Article 1225 of the French Civil Code does not require the resolutory clause to list the obligations whose non-performance justifies termination.
• It is enough that those obligations can be identified in a clear and unambiguous manner in the contract.
• “Sweep” clauses, which target any non-performance of an obligation expressly stipulated in the contract, remain valid — provided that the relevant obligation is identifiable.

[1]L. Andreu and L. Thibierge, “Présentation générale”, in “La réforme du droit des obligations”, special issue, AJ contrat 2018, p. 252, esp. p. 254: the requirement of precision set out in Article 1225 “does not preclude sweep resolutory clauses targeting any contractual breach” (our translation). To the same effect: F. Chénedé, “Interprétation et amélioration du nouveau droit des contrats”, D. 2017. 2214, esp. no. 35.

[2]Contra: M. Mekki, JCl. Contrats et obligations, Fasc. 70, “Effets du contrat”, § 41; Ph. Stoffel-Munck, “Réforme du droit des contrats : apports et incertitudes”, Justice et Cassation 2017, p. 264, taking the view that “the requirement that the clause specify the undertakings appears to exclude the validity of so-called ‘sweep’ clauses” (our translation). See also, in a more tentative tone, S. Guérin and N. Genty, “L’exception d’inexécution et les différentes formes de résolution du contrat”, AJ contrat 2017, p. 17.

[3]Report no. 22 by Senator F. Pillet, on behalf of the Senate Law Commission, filed on 11 October 2017, on the bill ratifying Ordinance no. 2016-131 of 10 February 2016: “The provision allows for the survival of so-called ‘sweep’ clauses. It merely requires that the clause express the circumstances in which it will operate, and therefore does not preclude the insertion of a clause providing that it will operate in the event of breach of any obligation set out in the contract. The earlier case-law upholding such clauses is therefore intended to survive” (our translation).

L’article A Resolution on Terminations est apparu en premier sur Louis Thibierge.

Note on Cass., ass. plén., 29 May 2026, no. 23-20.005, B+R

On 29 May 2026, the Plenary Assembly (assemblée plénière) of the Cour de cassation handed down an eagerly awaited decision on personal injury.

The facts were of a sad banality: during a summer camp, a fifteen-year-old adolescent suddenly dived into shallow water and was injured. He would be left with severe after-effects — tetraplegia. One notes the considerable length of the proceedings, the accident dating back to 2006.

The victim and his parents sued the organising association and its insurer for compensation.

The Court of Appeal (Douai, 11 May 2023) held the association liable, but apportioned liability. It attributed a 60% share to the victim, for having dived « suddenly and without any precaution ».

Compensation was therefore limited to 40% of the loss sustained.

A simple but crucial question was put to the Cour de cassation: can the mere imprudence of the victim of a personal injury reduce her right to compensation?

Under the general law of liability, the answer admits of little doubt. The victim’s fault reduces her right to compensation in proportion to its causal role. It may even wholly exonerate the defendant where it displays the characteristics of force majeure.

This the Cour de cassation takes care to recall at the outset: « according to settled case law, unless it displays the characteristics of force majeure, the victim’s fault which has contributed to the occurrence of her loss constitutes a ground for partial exoneration of liability, whatever the nature of the liability incurred and of the loss sustained ».

Note the generality of the statement: the rule applies whatever the nature of the liability and of the loss sustained. This holds broadly true, setting aside certain special regimes such as the loi Badinter (the Act of 5 July 1985 on road-traffic accidents), which affords the non-driver victim a protection exceeding the ordinary law.

Having laid down this general reminder, the Cour de cassation initiates a significant shift.

It stresses the specificity of personal injury, « characterised by an impairment of the physical or psychological integrity of the person ». For now, that specificity remains modest, being embodied, in the general law, in Article 2226 of the French Civil Code — which removes the action arising from personal injury from the ordinary five-year limitation period and from the long-stop period of Article 2232 — and, in special law, in Article 3 of the loi Badinter referred to above.

De lege ferenda, one could go further in addressing this specificity of personal injury. One bears in mind the exception to the principle of non-option (the ill-named rule of « non-cumul »): Article 1233-1 of the draft reform of civil liability anchors personal injury in the law of extra-contractual liability while allowing the victim to prefer contractual liability — retaining the benefit of the contract (a strict, result-based safety obligation) without bearing its limits (limitation-of-liability clause, clause shortening the limitation period, and so forth).

The text provides: « Loss resulting from personal injury is compensated on the basis of the rules of extra-contractual liability, even where it is caused in the course of performance of the contract. However, the victim may rely on the express stipulations of the contract that are more favourable to her than the application of the rules of extra-contractual liability».

One also thinks of Article 1254 of the same draft, which provides that « the victim’s breach of her contractual obligations, her fault, or that of a person for whom she is responsible, are partially exonerating where they have contributed to the occurrence of the loss. In the case of personal injury, only a gross fault can give rise to partial exoneration ».

In other words, only the victim’s gross fault could give rise to an apportionment of liability.

This shows how tempting the opportunity was for the Cour de cassation to take the step and to enshrine what the legislature has for years struggled to achieve: a change to the rules governing compensation for personal injury where the victim is at fault.

On this point, the decision will disappoint those who expected the Plenary Assembly to « anticipate » the reform of civil liability by confining apportionment of liability to situations in which the victim’s fault is « gross » or of particular gravity.

One notes here that the Douai Court of Appeal had taken care to characterise the young diver’s imprudence as « grave ». The Cour de cassation could have seized upon this.

It does not.

Yet the decision opens a new front.

To that end, the Plenary Assembly first takes up the concept of the duty to inform. At paragraph 7, the decision recalls that « in order to prevent the occurrence of such harm, duties to inform and to warn rest on the professional as regards the safety risks associated with the performance of its service, in particular in respect of sporting or leisure activities ».

The reasoning begins to show: had the professional informed the victim, she would (no doubt) not have exposed herself to the risk. Applied to the case, the reasoning means that, had the camp supervisors warned the youngsters that the water was too shallow to dive into, the victim would not have dived.

It is indeed this reasoning that the Court sketches at paragraph 8: « in the case of an imprudent fault of the victim, the professional’s breach of the aforementioned duties — compliance with which would have been such as to prevent the accident — does not permit a causal link to be found between that fault of the victim, who was not informed of the risks, and her personal injury ».

The reasoning, causal in nature, allows the judges to avoid opening a debate on the gravity of the fault, and to avoid setting a threshold below which the victim’s fault cannot be raised against her — much as the law provides in respect of road-traffic accidents.

It is thus causation, a flexible concept, that underpins the solution.

This causal reasoning is open to discussion. It seems to us that it does not escape a degree of artifice. Stricto sensu, the victim’s fault did contribute to her loss. Had she not dived, she would not have been injured.

This absorption of the victim’s fault (the victim being a minor, which the Court does not mention) by the organiser’s fault may be understood in light of the policy aims driving it. But on strictly causal ground, it does not wholly carry conviction.

Were one to reason, as under the general law, in terms of a (negative) loss of chance, one would reach a different solution — namely, assessing the chances that the victim, better informed, would have avoided the harm (by not diving). Here, the Cour de cassation short-circuits the loss-of-chance analysis, seemingly treating the victim’s active role as immaterial.

At paragraph 9, the Court states that there is « accordingly ground to rule henceforth that, since the professional organiser of a sporting or leisure activity is bound to give the safety instructions necessary for the practice of the activity and adapted to the public concerned, in the absence of such instructions it cannot, in the event of personal injury suffered by one of the participants, obtain an apportionment of liability by invoking imprudence on the part of the victim ».

The principle set out supra is here refined, hedged about with a number of conditions.

For apportionment of liability to be refused, the following are required:

• that the organiser of the sporting or leisure activity be a professional — which will no doubt exclude a number of cases of family or voluntary supervision;
• that the organiser have given no safety instruction whatsoever, since the decision refers to « the absence of such instructions ». This augurs interesting debates where the information was insufficient or piecemeal. What if the supervisors had said « be careful when diving! »? It should be noted that, in this case, the supervisors had allowed the children to bathe, but the question of diving had, it seems, not been addressed.

In short, the Plenary Assembly strengthens the rights of the personal-injury victim; but the road still appears long, and the need for a thorough reform of the law of civil liability is felt all the more keenly.

Takeaways

• The decision of 29 May 2026 is not a new Desmares — that 1982 provocation by the Court designed to prompt the legislature to react.
• Rather than seizing on the gravity of the fault to confine apportionment of liability, the Cour de cassation adopts a different technique: causation.
• Where the professional organiser of a sporting or leisure activity, bound by a duty to inform, gives no safety instruction, the victim’s imprudent fault cannot be raised against her, whatever its gravity.

L’article Personal injury — An uninformed victim, no apportionment of liability est apparu en premier sur Louis Thibierge.