Indeterminacy of Price in Service Provision Contracts

Extract

[...] In principle, this contract is onerous because the entrepreneur's service has a price. To what extent does the price, a characteristic of the business contract, allow for the establishment of an evolution desired by the reform projects of special contracts regarding its fixing? The price is indeterminate at the formation of the service provision contract Remedies are nonetheless considered for the business contract The indeterminacy of the price at the formation of the service provision contract The price of the work can be indeterminate at the formation of the contract, which constitutes a relaxation of the requirement for the fixing of the price envisaged by the reform in contract law Only a posteriori control mechanism is instituted The relaxation of the requirement for the fixing of the price Since the ordinance of 10 February 2016, the Civil Code states that the service must be 'determined or determinable' (Article 1163 paragraph 2). [...]

[...] We identify two: the lump sum price and the estimate, provided for in the Stoffel-Munck reform draft. Regarding the lump sum price, Article 1761 of the draft provides that 'the parties may agree on a lump sum price, in which case Article 1195 is without application'. In this case, the price is set in the contract according to a lump sum that takes into account the work to be performed. The lump sum may apply to only a part or to the entire work. [...]

[...] The quote binds the contractor for the duration specified or, failing that, for a reasonable period.' This quote allows for the definition of the unit price of each item. It is easier to fix the final price of the work. The judicial review of the price The new article 1165 of the Civil Code does not specify that the judge can fix the price in case of dispute. However, previous case law recognized that the judges of the first instance, for these contracts, had the power to fix the price (Civ. 1re November 2000). Is this jurisprudence maintained? [...]

[...] It must be considered that the judge can always fix the price of the work in case of dispute. Thus, when the price has the character of fees, the judge can reduce the excessive price in relation to the service, "notwithstanding any contrary clause" and except if the fees have been paid after the completion of the work in knowledge of the work done (art AP Stoffel-Munck)." However, the AP Stoffel-Munck goes further. In fact, paragraph 2 of its article 1760 provides that 'in the absence of an agreement on the price, the judge sets it based on the quality of the work done, the legitimate expectations of the parties, customs and any other relevant element'. [...]

[...] Once the price of the work is determined by the lump sum, it cannot be modified. If additional work is added, it must be the subject of a written agreement from the work's owner. The contractor cannot therefore impose additional work on his client without his agreement. The parties can also provide for the modalities of fixing the price through a quote. Article 1759 of the draft provides that the quote 'may be established to describe the work to be performed and estimate its price. [...]