Commercial Contracts 2025 Comparisons

French law follows the principle of party autonomy, as codified at Article 1102 of the Civil Code. Generally, what this means for B2B commercial contracts is that parties are free to choose the law governing their agreement.

French law follows the principle of consensualism, meaning that a contract is formed by the mere exchange of consents, without any particular form being required for validity, unless otherwise provided by law. In practice, however, contracts are often concluded in writing for evidentiary purposes or to ensure legal certainty.

Applicable Legislation

In France, commercial contracts are mainly governed by the French Civil Code (Code civil) and the Commercial Code (Code de commerce). The Civil Code lays down the general rules of contract law (eg contract formation, validity, interpretation, performance); while the Commercial Code sets out specific provisions governing commercial dealings (eg business practices, competition, relations between traders). Depending on the type of contract, other legislative frameworks may also apply, such as those relating to consumer protection, data privacy or intellectual property.

Main Differences Between French Law and the CISG

France is a party to the United Nations Convention on Contracts for the International Sale of Goods (CISG), which applies automatically to international sales between parties whose places of business are in contracting states, unless expressly excluded.

The main differences between French domestic sales law and the CISG include the following.

• Under French law, the principle of consensualism applies: a contract is formed by the mere exchange of consents; whereas the CISG adopts a more structured approach based on offer and acceptance, which can sometimes lead to stricter interpretations.
• The CISG does not govern matters of validity such as defects of consent, capacity or illegality, which remain subject to the applicable domestic law. In France, these are addressed under the Civil Code.
• Under French law, ownership (and, in principle, risk) passes solo consensu, upon agreement on the object and the price, unless otherwise stipulated. The CISG, by contrast, does not regulate ownership effects; it governs only the transfer of risk, which generally occurs upon delivery, and contains detailed provisions on the preservation of goods.
• The CISG provides a harmonised system of obligations and remedies: the seller must deliver conforming goods, and the buyer must pay the price and take delivery. Available remedies include repair or replacement, contract avoidance, price reduction, and damages, alongside a duty to mitigate loss. French law recognises similar mechanisms but applies them through the general contractual liability framework of the Civil Code, with more detailed domestic provisions on performance, termination and damages.

French law contains a mix of general mandatory rules applicable to all contracts and specific mandatory regimes governing particular categories of commercial contracts.

General Principles: Contractual Freedom and Mandatory Rules

Under Article 1102 of the French Civil Code, parties are free to decide whether to contract, with whom, and on what terms. However, this freedom is limited: parties cannot derogate from provisions that protect public policy (ordre public). Mandatory rules are provisions that cannot be set aside by agreement; any clause contrary to such rules is void or deemed unwritten. These rules serve to safeguard the general interest, legal certainty and the protection of weaker parties (such as employees, consumers or tenants), though they can also apply in commercial contexts.

Several Civil Code provisions are expressly mandatory and relevant to all contracts, including:

• Article 1104 (obligation of good faith);
• Article 1112 (pre-contractual duty of information);
• Article 1170 (prohibition of clauses depriving the essential obligations of a contract of any substance);
• Article 1171 (prohibition of unfair terms in adhesion contracts);
• Article 1231-5 (judicial moderation of penalty clauses);
• Article 1245-14 (product liability); and
• Article 1343-5 (judicially granted grace periods).

French commercial law also contains mandatory public-order rules regulating B2B relations. For instance, Article L.442-1 of the Commercial Code prohibits practices such as the abrupt termination of established commercial relationships without written notice reflecting their duration and usage. Breach of these provisions can give rise to liability irrespective of the parties’ chosen law.

Specific Contract Types Under the Civil Code: the Contract of Sale

Certain Civil Code contracts, such as sales contracts, contain mandatory seller obligations:

• delivery of the agreed goods (Article 1604); and
• two statutory warranties:
1. the warranty against eviction, protecting the buyer against disturbance of possession or third-party claims (Articles 1626 et seq), and
2. the warranty against hidden defects, covering defects that render goods unfit for use or significantly reduce their value (Articles 1641–1644).

Where the seller knew of the defect, Article 1645 provides that they are liable for all damages suffered by the buyer, underscoring the public-order nature of these obligations.

Franchise Contracts: Mandatory Pre-Contractual Disclosure and Post-Term Restrictions

Franchise contracts are subject to a mandatory pre-contractual disclosure regime under the so-called Doubin Law (Article L.330-3 of the Commercial Code). Before signing, the franchisor must provide the franchisee with a pre-contractual disclosure document (DIP) containing accurate and complete information enabling the franchisee to make an informed decision. Financial forecasts must be “serious and reliable”, and any omission or misrepresentation may lead to annulment for fraud and/or damages. This obligation is of public policy, and failure to comply can render the franchise agreement void.

Post-term non-competition clauses in distribution and franchise agreements are strictly regulated by Article L.341-2 of the Commercial Code. Such clauses are deemed unwritten unless they meet four cumulative conditions, which are that they:

• concern competing goods or services;
• are limited to the premises or territory of the franchise;
• are essential to protect substantial know-how; and
• last no more than one year.

The French Cour de cassation has ruled that this provision does not apply retroactively to contracts concluded before its entry into force, remaining subject to prior proportionality rules.

Furthermore, French courts confirmed that Article 1171 of the Civil Code (on significant imbalance in adhesion contracts) does not apply where the special regime on restrictive practices in Article L.442-1 of the Commercial Code is applicable, thus confirming the primacy of the special regime for B2B franchise and distribution networks.

Commercial Leases: a Statutory Public-Order Regime

Commercial leases are governed by a mandatory statutory regime set out in Articles L.145-1 et seq of the Commercial Code, which substantially limits contractual freedom. Key aspects of this regime include the following.

• A minimum lease duration of nine years, with limited and regulated early termination rights.
• The tenant’s right to renew the lease (droit au renouvellement) and, if renewal is refused, the right to an eviction compensation (indemnité d’éviction). Clauses attempting to waive or restrict these rights in advance are deemed unwritten (Articles L.145-15, L.145-16 and L.145-45).
• Controlled rent review mechanisms, including statutory revision caps and indexation formulas.
• Strict rules on termination, renewal notice and grounds for refusal of renewal.
• Mandatory allocation of charges and works, particularly since the 2014 Pinel Law, which limits the transfer of major repair and maintenance costs to tenants.

Beyond this protective core, the lease remains governed by general contract law and Civil Code provisions on leases, allowing flexibility on matters such as fit-out, guarantees and operational clauses, provided they do not undermine the tenant’s statutory rights.

Public Procurement and Contracts With Public Entities

The French Public Procurement Code (Code de la commande publique, or CCP) consolidates all rules governing public contracts and concessions. It defines public procurement contracts as agreements concluded for consideration between a contracting authority and one or more economic operators, and expressly subjects them to the CCP regardless of their label. These contracts form part of an imperative administrative regime governed by public law, extending to public service concessions. Even publicly funded private contracts may fall under the CCP where subsidies exceed 50% and EU value thresholds are met, illustrating the far-reaching mandatory nature of procurement law.

Key Legislative and Case Law Developments in France (2022–25) Relating to Commercial Contracts

France has witnessed substantial developments affecting commercial contracts, driven by both national reforms and EU regulatory initiatives. Key changes have reshaped areas such as commercial agency, B2B contracting in the digital economy, and supplier–distributor relations.

Commercial agents (consolidation of status and international reach) (2023)

On 11 January 2023, the French Cour de cassation reaffirmed that where the parties have chosen French law, the provisions of Article L.134-1 of the Commercial Code must be applied as interpreted in light of the CJEU’s Trendsetteuse SARL v DCA SARL decision of 4 June 2020 (C-828/18), even when the agent operates outside the EU (No 21-18.683). The court confirmed that an agent’s lack of authority to modify prices does not preclude their qualification as a commercial agent, provided they perform a continuous role of negotiation and, where applicable, contract conclusion on behalf of the principal. It also clarified that the principle of legal certainty does not grant parties a vested right in past interpretations: the applicable interpretation is that which prevails when the court rules.

Egalim 3 Law (Law No 2023-221 of 30 March 2023) (stricter supplier–distributor frameworks)

The Egalim 3 Law significantly strengthened regulation of commercial relationships between suppliers and distributors, particularly in the food and fast-moving consumer goods sectors. It extended the prohibition of certain discriminatory practices (first introduced under the 2021 Egalim 2 Law) to cover a wider range of consumer goods, thereby limiting businesses from offering different terms to different partners. The law also reinforces obligations relating to the negotiation and drafting of the mandatory written agreement (convention unique), mandating the inclusion of specific clauses, fixed contract durations of one, two or three years, and requiring contracts to be concluded before 1 March each year. Amendments are restricted to cases where they are objectively justified by new circumstances, reinforcing legal certainty and transparency in supplier–buyer relations.

The SREN Act (Law No 2024-449 of 21 May 2024) (a new cornerstone for digital B2B contracting)

The SREN Act (Loi visant à sécuriser et réguler l’espace numérique) complements and implements key EU digital regulations – most notably the Digital Services Act (DSA), Digital Markets Act (DMA) and the Data Act – within the French legal framework. It introduces a comprehensive framework reshaping the structure, negotiation and execution of digital contracts. For cloud computing, the SREN Act, supplementing the Data Act, rebalances relations between providers and business users by regulating cloud credits, self-preferencing, data localisation and provider switching; and by reinforcing rules on data localisation, portability and interoperability. These provisions directly impact contractual terms, service-level agreements and exit strategies in dealings with major platforms and intermediaries.

DSA/DMA (EU compliance requirements reshaping contractual frameworks) (2023–24)

The DMA, effective since 2 May 2023, imposes obligations on “gatekeepers” regarding data portability, interoperability, and the prohibition of self-preferencing and data reuse across services. The DSA complements this with duties of transparency, risk management and accountability for online intermediaries. Together, these regulations compel businesses to review terms of service, access policies and B2B contractual documentation, particularly for platforms facilitating distance contracts between professionals and consumers.

Platform contracts and liability allocation (2024)

Recent French case law has refined the legal qualification of digital platforms. Depending on the contractual framework, a platform operator may be classified either as a broker (acting as a neutral intermediarie) or as a mandatary (acting as an agent on behalf of a principal). This distinction shapes liability and risk allocation in tripartite contractual chains, particularly in logistics and digital intermediation, as mandataries may be directly bound by and liable under contracts they help to conclude. In parallel, courts have also reaffirmed that third parties may, under tort principles, claim for damage caused by a contractual breach to which they were not a party – a key point for platform and subcontractor ecosystems.

Recent Trends in France in Commercial Contracts (2024–25)

Several notable trends have emerged in the practice and regulation of commercial contracts in France. These reflect both legislative and judicial developments, as well as broader economic, social and digital sector concerns.

Integration of ESG and CSR in contracts

ESG considerations have become a central element of contract negotiation and drafting. Clauses on CSR, ethical commitments and vigilance obligations are increasingly being incorporated, extending beyond direct contracting parties to the wider value chain. This reflects the influence of the French duty of vigilance legislation, the 2019 Pacte Law, and European directives on corporate sustainability due diligence. The shift is from “soft law” guidance to binding obligations.

The EU Data Act and SREN Act: fairness and compliance in digital contracts

The EU Data Act, applicable in France from 12 September 2025, establishes a control mechanism over unilaterally imposed B2B contract terms. Clauses that deviate from good commercial practice or good faith are void or unenforceable, with “black” and “grey” lists identifying prohibited or presumptively unfair terms – such as those excluding liability. It also imposes portability and interoperability obligations on cloud and data-processing services, requiring contractual mechanisms for reversibility, migration assistance, and free user access to generated data.

Complementing these EU rules, the SREN Act strengthens fairness and competition in digital markets by seeking to reduce contractual imbalance and prevent economic dependency, especially for SMEs. Clauses on data access, interoperability and exit now require careful review, and written negotiation records are increasingly important to prove that terms were mutually agreed rather than imposed.

In respect of choice of law in B2B contracts, French law follows the principle of party autonomy, as codified in Article 1102 of the Civil Code. Generally, in B2B commercial contracts, parties are free to choose the law governing their agreement, even if the chosen law has no objective link with the contract. This choice may be made expressly in the contract or may be inferred with certainty from its terms or the circumstances. The parties may also apply different laws to different parts of the contract.

This freedom is not absolute. It remains subject to overriding mandatory rules and considerations of public policy. For example, in consumer contracts (B2C), protective provisions of the consumer’s habitual residence law prevail over the chosen law, but this limitation does not apply in purely B2B commercial contracts.

Where both contracting parties are established in France, French law will ordinarily apply and jurisdiction is determined under Article 46 of the Code of Civil Procedure, which provides that the claimant may bring proceedings either before the court of the defendant’s domicile or before the court of the place of performance of the contractual obligation.

In cross-border contracts, the applicable law is determined in accordance with the Rome I Regulation (Regulation (EC) No 593/2008), which provides that the contract is governed by the law of the country where the party performing the “characteristic obligation” (typically the seller or service provider) has its habitual residence, unless the contract is manifestly more closely connected with another country.

In international B2B contracts, French law recognises the principle of party autonomy: the parties are generally free to choose the governing law, including a foreign law. However, this freedom is limited by the application of overriding mandatory provisions (lois de police) and by French international public policy.

The Rome I Regulation (Regulation (EC) No 593/2008) expressly defines overriding mandatory provisions as rules whose observance is regarded as crucial by a state for safeguarding its public interests (political, social or economic), to the extent that they must apply to any situation falling within their scope, regardless of the law otherwise applicable.

French courts will therefore apply their own lois de police automatically, even if the contract is subject to foreign law. This includes, for example, provisions of the French Commercial Code relating to restrictive trade practices (Article L.444-1 A), which apply to any contract concerning goods or services marketed in France, irrespective of the law chosen by the parties. Similarly, French rules governing real estate contracts will apply as overriding mandatory provisions whenever the property is located in France. These rules cannot be waived, and French courts have exclusive jurisdiction to enforce them.

The Rome I Regulation also allows French courts to take account of overriding mandatory provisions of the country where contractual obligations are to be performed (Article 9(3)). This applies only where those provisions render performance unlawful, and the court has discretion in assessing their scope, purpose and consequences.

In addition, the French international public policy exception operates as a further safeguard: even where the parties have chosen a foreign law, French courts will set aside its application if it leads to a result manifestly incompatible with fundamental principles of French law. In practice, this mechanism has been used in areas such as employment, consumer and competition law to prevent circumvention of French mandatory protections.

Together, these mechanisms illustrate the balance in French private international law between respect for party autonomy and the protection of essential public interests through the application of French mandatory rules.

French law is based on the principle of contractual freedom (Article 1102 of the Civil Code). This means that, even if a party is based in France, the parties may agree a non-French jurisdiction in a B2B agreement.

Even if both parties are based in France, the same principle of contractual freedom applies, meaning that the parties may decide to apply non-French jurisdiction provisions.

Ability to Agree on Arbitration: One Party (or Both Parties) Established in France

French law recognises party autonomy in commercial contracts. Parties established in France (even if only one of them) may submit commercial disputes to arbitration, subject to the limits imposed by public policy. Article 2059 of the Civil Code expressly provides that “all persons may submit rights of which they have the free disposal to arbitration”. Conversely, Article 2060 excludes disputes concerning status and capacity of persons, divorce, or, more generally, matters affecting public policy. Thus, arbitration agreements between professionals, whether French or foreign, are presumed valid provided they concern rights freely disposable by the parties.

Both domestic and international arbitration are expressly recognised by the French Code of Civil Procedure (Articles 1442–1503 for domestic arbitration, Articles 1504–1527 for international arbitration). Where all parties are established in France and the dispute has no international element, the domestic arbitration regime applies. Where the contract or dispute involves the interests of international trade, the arbitration is deemed international, regardless of the parties’ nationality or the seat of the tribunal.

French courts consistently uphold the validity and autonomy of arbitration clauses in commercial contracts. As a result, arbitration agreements are enforceable even where both parties are based in France, subject to Article 2060 limitations.

Commercial Arbitration: Jurisdiction of National Courts in the Presence of an Arbitration Clause

Where a commercial contract contains an arbitration clause, French courts must in principle decline jurisdiction, reflecting the doctrines of compétence-compétence and France’s obligations under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Article II(3) of the Convention requires state courts to stay proceedings where there is an arbitration agreement, unless the agreement is null, inoperative or incapable of being performed. French law enshrines the same principle at Article 1448 of the Code of Civil Procedure.

French courts may only retain jurisdiction in limited cases, namely where the arbitration clause is manifestly null or manifestly inapplicable. The threshold is deliberately high: mere doubts as to validity or scope are insufficient, as it is for the arbitral tribunal to rule on its jurisdiction in the first instance.

French law is particularly favourable to arbitration: courts intervene only (i) at the outset, by declining jurisdiction unless the clause is manifestly void or inapplicable (Article 1448 of the Code of Civil Procedure), and (ii) at the enforcement stage, by refusing recognition only where an award is manifestly contrary to French international public policy (Article 1514 of the Code of Civil Procedure).

As a result, a French party that has agreed to an arbitration clause cannot normally bring the dispute before a French court, except in these limited circumstances.

Applicability of Mandatory Provisions or Special Contract Regimes Protecting a National Party in Arbitration Between Professionals

Under French law, arbitration is available for disputes arising from commercial relationships between professionals, even where mandatory provisions or special regimes are applicable. The mere applicability of mandatory provisions, even those qualifying as overriding mandatory rules (lois de police), does not exclude arbitrability.

French arbitral tribunals may thus hear disputes involving restrictive trade practices or sudden termination of established commercial relationships (Commercial Code, Articles L.442-1 et seq). Arbitrators are required to apply the relevant public policy rules, including EU and French competition law, and protective provisions aimed at weaker parties. Awards may declare contracts void or grant damages for abusive practices, provided the arbitration clause covers such disputes. Clauses in distribution contracts have been upheld even where the dispute involved sudden termination, on the basis that broad drafting demonstrated the parties’ intent to submit all disputes to arbitration.

Scope of the Arbitral Tribunal and Review by State Courts

The principle of compétence-compétence gives arbitrators priority to rule on their own jurisdiction, subject to limited review by state courts where the arbitration agreement is manifestly null or inapplicable. Once an award is rendered, French courts may annul it if it violates public policy, including rules protecting distributors or weaker parties, or EU competition law.

French law follows the principle of consensualism: a contract is formed by the mere exchange of consents, without any particular form required for validity, unless otherwise provided by law. In B2B relationships, a written document is therefore not generally necessary for a contract to be binding; an oral agreement can suffice to create contractual obligations.

There are, however, exceptions. Certain contracts must comply with a statutory form (for example, suretyship agreements, transfers of intellectual property rights, or real estate transactions). In addition, the parties may themselves decide to impose a specific formality, such as requiring a written instrument, or be subject to professional practices that demand written documentation.

While writing is not always required for validity, written contracts remain the norm in commercial relationships to ensure legal certainty and facilitate proof.

The concept of culpa in contrahendo (pre-contractual liability) has long been recognised in French doctrine and case law. Traditionally, French courts relied on Article 1240 of the Civil Code to sanction pre-contractual faults such as bad faith in negotiations, abusive termination of discussions, or withholding of essential information. French law now expressly requires good faith in negotiations (Article 1112), establishes good faith as a general principle of contract law (Article 1104) and imposes a duty of disclosure during negotiations (Article 1112-1).

Pre-contractual liability is generally grounded in tort (Article 1240 Civil Code). The conditions are:

• a fault (eg, bad faith, abusive termination, entering into negotiations without intent to contract, failure to disclose essential information);
• loss; and
• a causal link between the fault and the loss.

French courts have consistently limited the scope of recoverable damages. Following the landmark Manoukian decision (Com., 26 Nov 2003), and as codified in Article 1112, recoverable loss cannot include the expected benefits of the contract not concluded, nor the loss of a chance to obtain them. Only wasted costs incurred during negotiations (such as due diligence, audit or travel expenses) may be compensated, along with ancillary harm directly caused by the fault (eg, reputational damage or misuse of confidential information).

The incorporation of one party’s standard terms and conditions into a commercial contract is governed by Article 1119 of the French Civil Code. Standard terms are binding on the other party only if they have been brought to its attention and accepted by it. Both conditions, awareness and acceptance, must be satisfied for the terms to be enforceable.

This can be done as follows.

• Standard terms are enforceable if they are reproduced in the contract, expressly referred to or annexed. A separate signature at the foot of the terms is not required, provided the contract clearly refers to them.
• Acceptance may be express (eg, signature under a declaration of knowledge and acceptance) or tacit, inferred from prior dealings between the parties or established trade practices. For example, signing a purchase order that expressly refers to general terms printed on the reverse is sufficient to demonstrate acceptance.
• Standard terms must be communicated by the time of the contract formation; otherwise, they are not enforceable.
• Standard terms may also be incorporated through consistent practice between the parties or through industry practice.

Where standard terms are not included in or annexed to the contract, enforceability is harder to establish: the party relying on them must prove that they were communicated and accepted at the time of contract formation.

Under French law, contracts are generally governed by the law chosen by the parties. This choice may be expressly stated in the general or specific terms of the contract and may even be modified during the performance of the contract by mutual agreement, provided that the rights of third parties are not affected. French courts uphold clauses designating French law in general terms and conditions where the parties’ mutual intention to submit the contract to French law and jurisdiction is evident.

In the absence of a valid choice of law, the contract is governed by the law of the country with which it is most closely connected, following the “characteristic performance” test and the presumption under Article 4 of the Rome I Regulation.

For standard terms to be enforceable under French law, they must have been brought to the attention of and accepted by the other party at the time of contract formation, as set out in Article 1119 of the French Civil Code. In case of inconsistency, specific terms prevail over general terms, in accordance with Article 1119(3), including in relation to jurisdiction or governing law clauses contained in separate documents.

Even where foreign law is chosen in standard terms, French law may apply through mandatory provisions or public policy exceptions. For instance, in the context of supplier–distributor relationships, particularly in the food sector, Chapters I to III of Title IV, Book IV of the French Commercial Code (as amended by Egalim 3) are mandatory. These provisions apply to all agreements where the goods or services are marketed in France, including those involving purchasing centres located abroad. No contractual clause or choice of foreign law can derogate from these rules. More broadly, the public policy exception in French private international law allows French courts to disregard the law otherwise applicable if its application would contravene the fundamental principles of the French legal order.

In practice, parties wishing French law to govern their contracts should include a clear, visible choice-of-law clause, aligned with a consistent jurisdiction clause. To ensure enforceability, general terms should be properly communicated and accepted (eg, by signature, annex or reference), and consistency between general and specific terms must be maintained, as the latter will prevail in case of conflict.

Under French law, standard terms may be invalidated where they create an unreasonable disadvantage for one party, under the concept of significant imbalance (déséquilibre significatif), which is complemented by rules on the non-enforceability of unaccepted standard terms.

Under consumer law, Article L.212-1 of the Consumer Code provides that clauses are deemed abusive where they create, to the detriment of the consumer or non-professional, a significant imbalance between the rights and obligations of the parties. Courts may declare a clause abusive even without a regulatory list, assessing the imbalance with reference to the rights and obligations that would otherwise apply under default legal rules. Typical examples include:

• clauses granting unilateral powers to modify or terminate the contract;
• lack of reciprocity;
• unfair payment conditions; or
• limitations of liability that effectively deprive an obligation of its essential content.

Transparency is also a key factor, and a lack of transparency may itself constitute an imbalance.

Under general contract law, Article 1171 of the Civil Code extends this control to adhesion contracts, including in B2B relationships, allowing courts to declare “deemed unwritten” any non-negotiable clause predetermined by one party that creates a significant imbalance. Article 1190 further provides that such contracts must be interpreted against the party that drafted or imposed them.

Separately, Article 1119 of the Civil Code provides that standard terms not brought to the other party’s attention and accepted are unenforceable. Clauses that are incompatible with the specific terms of the contract are without effect, and specific conditions prevail over general terms.

Where both parties seek to apply their own general terms and there is a conflict, Article 1119(2) of the Civil Code provides that incompatible clauses are ineffective (“battle of the forms”). Only the non-contradictory provisions remain applicable, unless one party expressly accepts the other party’s terms.

Additionally, Article 1119(3) of the Civil Code provides that specific terms agreed between the parties prevail over general terms in the event of inconsistency.

Specific Commercial Contracts Requiring an Original (Wet) Signature or a Notarial Deed

In the sphere of B2B agreements, the requirement for a notarial deed is limited. Notaried documents are often only required in real estate or corporate transactions – such as business sales or clauses in commercial leases that mandate a notarial deed when the lease is transferred along with the business. A notarial deed also has practical value when payments are due over time, as it provides an enforceable title for the seller to recover the sale price.

Other types of commercial contracts (eg, mortgage creation, guarantees, real estate securities, and notarial leases conferring enforceable titles) may require a notarial deed but this is not the default position for routine commercial agreements.

Use of Electronic Signature in France

Provided the conditions of Article 1366 of the Civil Code are met, an electronic document has the same probative value as a paper document if the author is duly identified and its integrity is guaranteed. This can be achieved through reliable electronic signature systems like DocuSign, which are permitted.

The “qualified” electronic signature (as defined under European Union law in the eIDAS Regulation) enjoys a presumption of reliability under French law and is the only form of electronic signature with legal effects equivalent to a handwritten signature. This presumption is confirmed by the Decree of 28 September 2017, which supplements the French Civil Code and gives legal recognition to electronic signatures.

Even if the signature is not “qualified”, it cannot be dismissed on the sole grounds that it is in electronic form or does not meet the qualifications of a qualified signature (under the eIDAS Regulation). In the case of disputes, the judge will verify the conditions under Articles 1366 and 1367 of the Civil Code (as required under Article 287 of the Code of Civil Procedure (CPC)) and may assess the reversal of the presumption of reliability in cases involving a qualified signature (as per Article 288-1 of the CPC).

The presumption of reliability (Article 1367(2) of the Civil Code) applies when the signature is created, the signer’s identity is ensured and the integrity of the document is guaranteed under conditions set by the decree. This is fulfilled by a “qualified” electronic signature according to the eIDAS Regulation and the Decree of 28 September 2017.

If the signature is contested, the burden of proof lies with the person denying the signature. The judge applies the procedures for challenging private agreements under the CPC, whereby the person contesting the electronic signature must prove that it does not originate from the signatory.

Overall, for typical commercial contracts between professionals, electronic signatures are generally valid and enforceable as long as they identify the author and guarantee document integrity, with qualified electronic signatures offering a presumption of equivalence with handwritten signatures.

As a principle, under French law, the conclusion of commercial contracts is governed by contractual freedom and consensualism. Contracts are therefore valid upon the meeting of consent without any need for registration or formalities. Ordinary commercial contracts, such as those for the sale of goods or the provision of services, are consequently exempt from registration requirements. The exceptions to this principle are limited.

There are, however, cases in which the law requires registration or publication, either under penalty of nullity or to ensure enforceability against third parties. These exceptions often reflect the legislator’s concern to protect third parties, secure transactions or preserve fiscal interests.

Unilateral Promises of Sale

A unilateral promise of sale regarding, for instance, immovable property, a business (fonds de commerce), a commercial lease or certain securities must, under penalty of nullity, be executed either as an authentic deed or as a private deed registered within ten days of acceptance by the beneficiary.

Commercial Leases

The regime of commercial leases requires careful distinction between rules of land registry publicity and tax law. From a land registry perspective, leases granted for a duration exceeding 12 years must be published with the land registry (service de la publicité foncière). Publication is essential to render the lease enforceable against third parties. In such cases, the lease must be executed as an authentic deed, since private deeds cannot be accepted for publication.

From a tax perspective, the approach differs. A commercial lease is in principle exempt from registration, but it may be voluntarily submitted. By contrast, assignments, subrogations, retrocessions and terminations of commercial leases must be registered.

Finally, the assignment of lease rights (cession de droit au bail) is also subject to registration duties under tax law and, when executed as a private deed, must be presented for registration within one month.

Transfers and Pledges of a Business (Cession et Nantissements de Fonds de Commerce)

The transfer of a business is subject to both tax registration and strict commercial publicity. For commercial purposes, the transfer must be published in a legal gazette and in the BODACC (Official Bulletin of Civil and Commercial Announcements) to inform creditors and third parties. For tax purposes, the deed must also be registered. The pledge of a business, on the other hand, is primarily a matter of commercial publicity and must be registered with the commercial registry to be enforceable against third parties.

Security Interests Over Movables

Security interests over movable assets, such as pledges over equipment, inventory or receivables, must be registered with the national register of security interests. This is a matter of commercial publicity, designed to protect creditors and ensure the priority of secured claims. Pledges over shares or other securities are likewise subject to specific registration and publication rules depending on the type of asset concerned.

Intellectual Property Agreements

Recording an event in the French National Trademark Register allows any legal change affecting a trade mark to be made public and enforceable against third parties, including the following:

• an assignment or transfer;
• licence agreement;
• pledge or mortgage;
• change of ownership;
• transmission;
• merger; or
• dissolution.

The trade mark must already have been published in the BOPI (Official Bulletin of Industrial Property), and only trade marks effective in France may be recorded, with EU or international trade marks excluded except in specific circumstances.

In Summary

While contractual freedom and consensualism remain the default rule and exempt most commercial contracts from any formalities, a series of exceptions impose registration or publication requirements. Some of these obligations arise from tax law, while others belong to the realm of commercial or land registry publicity. A practitioner must therefore consider both perspectives carefully, since the consequences of non-compliance range from unenforceability against third parties to outright nullity.

For all contracts, including commercial contracts, in order to be valid the rules set out by civil law are applicable (Article 1128 of the Civil Code.). There are four conditions for the validity of any contract.

• Consent of the parties – Consent must be free and informed, and will be vitiated by error, fraud or duress. A contract concluded in the absence of genuine consent is null and void.
• Capacity to contract – Each party must have the legal capacity to enter into binding obligations. Legal entities must act through duly authorised representatives, in accordance with their statutes and legal personality. Individuals must also have capacity. As a general rule, minors and adults under protective regimes are not permitted to carry out commercial activities, except under certain conditions. For example, an emancipated minor may be authorised by the court to carry on a commercial activity, and a protected adult may enter into contracts with the assistance or representation of a guardian or curator.
• Certain and determinate object – The services agreed must be identifiable and sufficiently precise for the contract to be performed. A contract with an indeterminate or impossible object is not binding.
• Lawful cause or content – The obligations undertaken must be lawful and not contravene mandatory rules. Contracts with an unlawful or immoral purpose are null and void.

In addition to these conditions, the content of commercial contracts may be subject to specific requirements, such as the respect for provisions of public order. Certain areas of commercial law are governed by mandatory rules from which the parties cannot derogate, even by mutual agreement. For example, statutory provisions governing the status of commercial leases prevail over contractual freedom.

Finally, as set out above, specific categories of commercial contracts may also be subject to special formalities such as registration or publication, either as a condition of validity or as a requirement for enforceability against third parties. These formalities represent further limits on consensualism and must be carefully considered in practice.

In B2B contracts, the contract formation and performance are primarily governed by the Civil Code and the Commercial Code. The principle of contractual freedom predominates, as parties are presumed to negotiate on equal footing. Restrictions exist mainly to ensure proper commercial practices, such as rules on payment terms, sudden termination and abusive imbalances in contractual clauses; or to protect fair competition under French and EU competition law.

In B2C contracts, the regime is far stricter, combining Civil Code provisions with consumer protection rules from the Consumer Code and EU law. Professionals must:

• provide detailed pre-contractual information;
• respect the consumer’s right of withdrawal;
• avoid abusive terms; and
• honour statutory warranties.

These are rules of public policy and cannot be derogated from by agreement.

Under French law, consumer protection in B2C contracts is anchored in the Consumer Code and EU directives. These rules are of public order and cannot be waived by agreement. The most important rights are as follows.

Right to Clear Pre-Contractual Information

Before the contract is concluded, the professional must provide the consumer with complete and comprehensible information about the following:

• the essential characteristics of the goods or services;
• the total price (including taxes and additional costs);
• the delivery or performance date; and
• the identity and contact details of the professional.

This obligation ensures that consent is informed and valid.

Right of Withdrawal

Consumers benefit from a statutory 14-day cooling-off period for distance contracts (online, phone or catalogue sales) and off-premises contracts (eg, contracts signed at the consumer’s home). During this period, the consumer may withdraw without giving any reason and without incurring costs, other than possible return shipping fees. The period begins on the day of delivery for goods or on the day of conclusion of the contract for services. Only certain contracts are exempt (eg, bespoke goods, perishable items or fully performed services with prior consumer consent).

Protection Against Unfair Terms

Any clause creating a significant imbalance between the rights and obligations of the professional and the consumer is deemed unfair (clauses abusives) and will be considered void. Examples include clauses that do the following:

• unreasonably limit liability;
• impose disproportionate penalties; or
• allow unilateral modifications by the professional.

Statutory Warranties

Consumers enjoy the legal guarantee of conformity, which applies for at least two years from delivery and covers goods, digital content and digital services. They also benefit from the warranty against hidden defects under the Civil Code. These rights exist regardless of any contractual or commercial warranty and cannot be waived.

Fair Commercial Practices

The law prohibits misleading and aggressive practices. Misleading advertising, omission of key information, or undue pressure on consumers may give rise to sanctions and render the contract voidable.

Right to Mediation and Alternative Dispute Resolution

Every consumer must be given the possibility of having recourse to a consumer mediator free of charge in the event of a dispute with a professional. This obligation means that professionals must inform consumers of the relevant mediation body and provide clear access to ADR mechanisms.

Under French law, the core concept of contractual liability is that a contracting party which breaches its contractual obligations must compensate the other party for the loss caused. This principle, set out in Article 1231-1 of the Civil Code, flows directly from the binding force of contracts.

To engage contractual liability, three conditions must be established:

• a fault or breach, meaning the non-performance, delay or defective performance of the obligation;
• a loss suffered by the creditor, which may be material, moral or financial; and
• a causal link between the breach and the loss.

French law does not provide for punitive damages. The principle governing damages is that of full compensation, meaning that damages are strictly compensatory and aim only to put the injured party back in the position they would have been in had the breach not occurred. Damages cannot exceed the actual loss suffered.

As a principle, compensation is limited to direct and foreseeable losses that result from the breach. Indirect or consequential losses are not, in principle, recoverable, although the line between “direct” and “indirect” damage is not always clearly drawn by the courts. For this reason, it is common in practice for contracts to include explicit exclusion clauses setting out which categories of indirect losses (such as loss of profits, loss of customers or loss of opportunity) will not be recoverable.

French law recognises several regimes of liability without fault (strict liability), primarily outside the contractual sphere, rooted in civil and commercial law policy.

• Liability for things in one’s custody, including accidents caused by machinery, vehicles or premises (Article 1242 of the Civil Code).
• Liability for others, such as parents for their children, or employers for employees.
• Product liability, under the EU directive implemented in French law, which imposes strict liability on producers for defective products causing damage.
• Certain environmental or public safety obligations, where liability arises even absent fault.

In the contractual sphere, liability remains predominantly fault-based, except in specific regulated contexts.

French law generally allows parties to limit or exclude liability contractually, reflecting the principle of contractual freedom. Such clauses are valid provided they do not:

• exclude liability for personal injury or gross fault;
• deprive an essential obligation of all effect (which would render the contract illusory); or
• conflict with mandatory provisions of public order.

In B2B contracts, limitation of liability clauses are widely accepted, whether individually negotiated or included in standard terms. However, in B2C contracts, consumer law imposes stricter scrutiny, and abusive clauses that create a significant imbalance to the detriment of the consumer will be invalidated.

In practice, limitation of liability is often expressed by:

• excluding indirect or consequential damages;
• capping damages at a percentage of the contract price; or
• restricting liability to insurance coverage.

French courts generally uphold such clauses between professionals, unless they fall within the prohibitions noted above.

A party may be relieved from performance if it is prevented by a force majeure event, even if the contract does not contain a specific clause. The concept is codified in Article 1218 of the Civil Code and applies automatically unless excluded or modified by the parties.

Force majeure can only be invoked by the debtor of the obligation, that is, the party whose performance has become impossible. An event constitutes force majeure when:

• it is beyond the debtor’s control;
• it could not reasonably have been foreseen at the time the contract was concluded; and
• its effects cannot be avoided by appropriate measures.

In such a case, the debtor is released from liability for non-performance.

If the impediment is temporary, performance of the obligation is suspended while the event lasts, unless the delay is so significant that it justifies termination of the contract. If the impediment is permanent, the contract is automatically terminated and both parties are released from their obligations.

This concept applies automatically unless the parties have agreed otherwise. It is not a rule of public order, so contractual derogations are possible.

It is standard practice in France for commercial contracts to include a force majeure clause, even though Article 1218 of the Civil Code applies by default.

The reason is to reduce uncertainty: the statutory definition is broad, and courts assess the existence of a force majeure event on a case-by-case basis in light of the facts. By listing specific examples (such as natural disasters, terrorism, pandemics, strikes, etc), the parties gain greater clarity as to what will qualify as a force majeure event.

Parties may also use contractual provisions to adjust or supplement the statutory regime. A clause may, for example, require the affected party to give prompt notice of the event and to take steps to mitigate its effects. It may also clarify the precise consequences of force majeure, such as whether the obligation is suspended, whether the contract may be terminated after a given period, or how costs are allocated. This tailoring gives the parties greater certainty and control than reliance on the statutory regime alone.

The absence of a contractual clause does not prevent a party from invoking force majeure under French law, since Article 1218 applies automatically unless expressly excluded. However, without a clause, the scope of relief and its consequences will be determined by the law or, where applicable, the courts.

Article 1195 of the Civil Code provides for the doctrine of hardship (imprévision).

Where an unforeseeable change of circumstances at the time of contract formation renders performance excessively onerous for one party, that party may request renegotiation of the contract. The other party is obliged to negotiate in good faith.

If renegotiation fails, the parties may agree to terminate the contract or jointly request a judge to adapt it. In the absence of agreement, either party may ask the judge to revise the contract to reflect the changed circumstances or to terminate it on the date and under the conditions the court decides.

It has become increasingly standard for commercial contracts to include hardship clauses.

First, the scope of what qualifies as “unforeseeable circumstances” or as making performance “excessively onerous” under Article 1195 of the Civil Code leaves considerable room for interpretation. For instance, to reduce this uncertainty, parties may sometimes set clear financial or economic thresholds which, once reached, automatically trigger renegotiation.

Second, Article 1195 allows a judge to adapt or terminate the contract if renegotiation fails. This creates another source of uncertainty, as courts may not always be considered best placed to decide what commercial parties should agree in the context of their business. To address this, hardship clauses typically establish a contractual renegotiation process and may provide for termination if no agreement can be reached, thereby keeping the matter within the parties’ control.

The absence of such a clause does not prevent reliance on Article 1195, which applies by default. However, since it is not a rule of public order, the parties are free to exclude or adjust its application. In practice, it has therefore become common either to include a tailored hardship clause to secure predictability or to exclude Article 1195 altogether.

Warranties

French law provides for several statutory warranties, which operate alongside any contractual warranties negotiated between the parties.

Warranty against hidden defects (garantie des vices cachés)

This is set out in Article 1641 of the Civil Code. It applies to both B2B and B2C contracts and holds the seller liable where a defect, unknown to the buyer, renders the goods unfit for their intended use or substantially diminishes their value. The buyer may rescind the contract or obtain a reduction of the price, and damages may also be awarded if the seller knew of the defect. Actions under this warranty must be brought within two years from the discovery of the defect. In B2B contracts, it is possible to exclude or limit this warranty, provided the seller has not acted in bad faith, whereas in consumer contracts, it is of public order and any exclusion is void.

Legal warranty of conformity (garantie légale de conformité)

This applies only in B2C contracts and is codified in the Consumer Code. Here, the seller must deliver goods, digital content or digital services that conform both to the contract and to statutory quality standards, including fitness for ordinary use, conformity with the description given, and possession of the qualities that the consumer may legitimately expect. This warranty lasts for two years from delivery, extended to three years for certain durable goods since 2022. Where the guarantee applies, the consumer may require repair or replacement, and, if that is not possible, may seek termination or a reduction of the price. This warranty is mandatory and cannot be excluded or limited by agreement.

Finally, parties may provide for commercial or contractual warranties. Such warranties are contractual in nature but never displace the legal regime: in B2C, they must be provided in clear terms and expressly indicate that they are without prejudice to the statutory warranties.

Remedies

The Civil Code sets out a structured system of remedies available where a contractual obligation has not been performed, or has only been performed imperfectly. Under Article 1217, the creditor of the obligation may:

• refuse to perform, or suspend its own obligations until the counterparty performs;
• pursue specific performance of the obligation, unless such performance would be impossible or manifestly disproportionate;
• obtain a reduction of the price where the performance is defective or incomplete; and
• where the non-performance is sufficiently serious, bring about the termination of the contract.

In all cases, the creditor may also claim damages to compensate for the consequences of the breach, under the rules of contractual liability.

These remedies are not mutually exclusive. The Civil Code expressly allows sanctions that are not incompatible to be combined, and damages may always be added. This means a party might suspend its own performance, terminate the contract, and at the same time seek damages for the losses it has suffered.

Under French law, parties may deviate from the main warranty and remedy provisions by agreeing otherwise in the agreement. However, this is subject to the following specifics.

Warranties

In B2B contracts, the parties may deviate from statutory warranty provisions. The warranty against hidden defects applies by default but may be contractually excluded or limited, provided the seller has not acted in bad faith.

In B2C contracts, the legal warranty of conformity and the hidden defects warranty are mandatory and of public order. They cannot be excluded or limited, and any clause doing so is void.

Remedies

The Civil Code provides a default toolbox; however, in practice, the parties may regulate how these remedies apply. They may, for instance, limit their liability, exclude recovery of indirect or consequential losses, or require notice and cure periods before termination. However, French law prohibits clauses that deprive an essential obligation of all effect, or that exclude liability for gross fault or wilful misconduct.

In B2C, the freedom to limit remedies is much narrower, as consumer protection rules prevail.