Common contract law
LexInter | January 14, 2002 | 0 Comments



Article 1101  
The contract is an agreement by which one or more people undertake, towards one or more others, to give, to do or not to do something.

Essential conditions

Article 1108
Four conditions are essential for the validity of an agreement:
The consent  of the obliging party;
Its  ability to contract;
A certain object which forms the material of the engagement;
A  lawful cause in the obligation.


The principle of the binding force of contracts

Article 1134
  The legally formed agreements take the place of law for those who made them.
They can only be revoked with their mutual consent, or for reasons authorized by law.
They must be performed in good faith.
Article 1135
Conventions oblige not only what is expressed therein, but also all the consequences which equity, custom or the law give to the obligation according to its nature.








Code of Obligations of March 30, 1911

Article 1

The contract is perfect when the parties have, reciprocally and in a concordant manner, expressed their will. This manifestation can be express or implied.



Commercial contracts

contracts with consumers

Consumers in e-commerce

The offer to the consumer

Article L133-2

The clauses of contracts offered by professionals to consumers or non-professionals must be presented and drafted in a clear and understandable manner.

They are interpreted in the event of doubt in the sense most favorable to the consumer or to the non-professional. This paragraph is not, however, applicable to proceedings initiated on the basis of Article L. 421-6.

The merchant must respect a set of obligations

delivery obligation: he must deliver goods in accordance with the contractual stipulations
delivery time: article L 114-1 of the consumer code prescribes the indication of a delivery deadline for goods exceeding a regulatory value. Article 7 of the Distance Selling Directive provides for an additional period of thirty days from the day after the order is sent to the supplier.
cost of delivery; Article 1608 of the Civil Code provides as a supplement that the costs of delivery are to be borne by the seller


Consumer protection laws


proof of contract


the consumer and his consent

double click

acceptance boxes to check


Unfair terms

Both consumer law and case law have restricted the enforceability of abusive clauses


Codes of good conduct

The classic scheme

The membership contract

The classic pattern takes place in a context of a rural economy, characterized by individual contractual relationships.

This scheme is based on the principles of offer and acceptance, individual negotiation of the contract, and the simultaneous presence of co-contracting parties for the formation of the contract. He knows the concepts of pollicitation and public offering.

The classic scheme already regulated the formation of contracts by correspondence based on the concepts of issue and receipt.


The industrial economy sees the development of the adhesion contract in the cases of mass contracts, and counter contracts.

These contracts are characterized by the stipulation, that is to say, the will of the “strong” co-contracting party to apply in a general way, without major modification, the essential conditions of the contract, which thus it does not submit to discussion, and by the adhesion of the “weak” party to the contract, which thus indicates its intention to submit for the transaction, to the terms and conditions of this stipulation.

In this diagram, the passage from the contract to the institution, for example in the case of the employment contract, marks yet another development.



named contracts

The named contracts are those whose definition and regime have been specified by law (see article 1107 C.civ.). These are for example the contracts governed by the Civil Code in articles 1582s and in particular

the sale
the exchange
the hire
real estate promotion
the society

Other contracts have been defined and their regime fixed by case law such as the concession.

Innominate contracts

Given the autonomy of the will, the parties to a contract may agree to commitments which do not correspond to any of the named or existing qualifications.

Contracts with professionals

Regarding the application of article 1134 of the Civil Code: brief variations on operating contracts, n. under Cass. Civil. 1st, June 8, 1999, Colorado Company v. Lee Cooper International Company, Caron, Christophe, Communication Electronic Commerce, 10/1/1999

The audiovisual work order contract, Chardin, Virginie, Dalloz Sirey, 1997.202

General conditions

The problem of the date is inseparable from the problem of the signature, in order to identify the applicable contractual clauses. However, it has not been the subject of any attention.

Sales contracts

The law of sale is governed by the provisions of the Civil Code on the sales contract is the common law of contracts.

Network computing is a place of choice for the indivisibility of contracts,

Cour de cassation, Commercial Chamber, October 5, 1999, Bertrand and others v Banque Nationale de Paris (BNP), Bail nation Equipment, Linant de Bellefonds, Xavier, Communication Commerce électronique, 01/01/2000, pp 20-21

Relational diagram

In order to analyze the problems and solutions concerning consumer protection with regard to the conclusion of contracts in the information society, it is necessary to situate technological developments in relation to contractual patterns.

Contract groups

Unlike the classical theory of contracts, marked by the relative effect of contracts, contract law as it evolves under the influence of case law tends to recognize in certain situations the interdependence of contracts.

The indivisibility of a contract group results from the “very economy of the business transaction”

Paris Nov. 17, 1994, RTDCiv. 1995, p. 363, obs. J Mestre; Cass. Civ. 3 °, March 3, 1993, Bull. civ. III, n ° 28

The economy of the contract is implemented in particular by the analysis of the CAUSE

Acceptance of clauses / formation of the contract, Formalism and signature, written

The problem of the conclusion of a contract, to reason pragmatically, is not in fact that of the existence of the relationship with the consumer, if only because, in the case of distance contracts, the period of reflection or repentance, in many legislations and according to community law, makes it possible to return,  a posteriori , to the existence of the contract (the essential problem being that the consumer will probably have already paid).

The question is in fact the possibility for the company, against the consumer, to invoke the clauses of its general conditions, on the basis of the existence of a contract.

In the current modalities of the electronic contract, the possibility of a contractual formalism is non-existent. Indeed, the mechanisms of formation of the electronic commerce contract are constituted by the ”  click  ” or the ”  double click”. From the consumer on an icon on the screen. In the case of electronic transactions, consent is exchanged with a machine, which makes the formalism of consent provided for by consumer law inapplicable to these hypotheses, and which is based on the existence of a written document (this is particularly evident in the case of consumer credit contracts which are the subject of Directive No. 87/102 / EEC on the approximation of the laws, regulations and administrative provisions of the Member States in the field of consumer credit).

It is therefore appropriate to question the fiction according to which there is consent in contracts between professionals and consumers. Is it possible to maintain it, when with electronic commerce, we reach the extreme point of the evolution initiated by membership contracts, mass contracts and counter contracts, as to the fictitiousness of the consent given by the consumer to the contracts he subscribes to. In contracts that can be called counters, with printed conditions, there is at least a theoretical possibility of adjusting the general conditions. This is also why certain rights, such as Italian law, require the signing of onerous clauses, which it is assumed that they could be deleted. Special conditions are often provided with options.

This question presupposes the legal certainty of electronic commerce, in a context where we have moved from paper to computer support. In this context, the electronic signature, capable of giving value to the computer document, takes on all its importance.

Indeed, the requirement of writing responds in fact to the idea of ​​guaranteeing the reliability and fidelity of the contract to what has been the subject of the consent of the parties. The written word fulfills these conditions.

The absence of written support refers to the question of proof of the consent given. There is the double question of consent itself and the content of that consent.

Berlioz & Co will analyze the balance which should be achieved, so as not to hinder, by the requirement of a written document, the development of virtual commerce, while maintaining a high level of consumer protection, in particular with regard to the rule. placing the burden of proof of consent and its content on the trader (see for example article 5-2. of the proposal for a directive on the distance marketing of financial services to consumers). Community legislation must both ensure legal recognition of the validity of contracts concluded over open networks and establish a system of proof protecting consumers.

National laws provide for application thresholds beyond which recourse to writing is compulsory. These provisions are based on a definition of the written word and the terms of the formalism (initials, etc.) to be respected, under penalty of the non-validity of the commitment. These provisions are based on a possible distinction between traders and non-traders, which may determine the scope of the obligation to use writing above certain thresholds.

In national legal systems, this written requirement is generally linked to the requirements of the law of evidence. In fact, in certain cases, in the absence of writing, the trader is unable to prove against the consumer.

Between traders, the absence of writing may not lead to the impossibility of proof. EDI offers the advantage of secure links through intranet networks. Electronic data exchanges have developed between traders (see the TEDIS system for example) and are based on proof-based conventions, which are fully admissible in this context. These possibilities of secure links form one of the differences with extranet electronic commerce.

However, whether they are carried out on an extranet or an intranet, electronic transactions presuppose that the constraints linked to the reliability and archiving of the recording medium are resolved. However, the media used in practice are not immune to alteration, offer little protection against erasure, and are characterized by the inexistence of reliable copies. All in all, for all these reasons, admitting an electronic document as evidence is much more risky than admitting a written document.

Content control


The protection of the consumer who contracts on the Internet passes by the guarantee according to which he can avail himself of the elements and information, which were announced to him and by virtue of which he made his decision. This implies the integration of advertisements and announcements among the elements opposable to professionals. In the context of electronic commerce, this principle poses the particular problem of identifying advertisements and promotional offers. Indeed, on business sites, in terms of presentation, advertising can easily be confused with simple information. This is why a clarification on this subject seems essential and is the subject of the provisions of the proposal for a directive on certain legal aspects of electronic commerce (OJEC n ° C 30/4 of 5.2.1999).

In addition, the electronic commerce contract, like that of traditional commerce, includes obligations “discovered” in the contract by the legislator (cf. for example, Directive n ° 92/59 / EEC on general product safety JOCE L 228/24 of 11.08.1992) and / or case law. It is :

– the obligation to advise: there is indeed a broad duty of information for the professional, and all the more so as the consumer has less knowledge of the product or service acquired. In distance commerce, and more particularly electronic commerce, consumer knowledge is further reduced. Under these conditions, it seems that, correlatively, the obligation of the supplier is all the more onerous;

the safety obligation: “discovered” by the contract judge on the occasion of passenger transport contracts, this obligation has been extended to other areas, and means that the professional is not only bound, towards the consumer, of what is stipulated, but also must make a commitment that the consumer’s safety will not be jeopardized by the good or the service he provides.

The further diminished nature of the control exercised by the consumer over the content and the conclusion of the electronic contract, encourages the placing of even worsened burdens and responsibilities on the professional.

The electronic contract is a distance contract but which has a difference compared to contracts in this category, insofar as it is based on the total abstraction of the process of concluding the contract due to the dematerialization and depersonalization of transactions. Compared to sales made by telephone, depersonalization, dematerialization and offshoring are further accentuated.

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