Court Ruling on Contract Qualification

Extract

[...] The Court of Cassation rejected the appeal and confirmed the analysis of the appellate judges. For the judges of cassation, 'custom-made takes precedence over off-the-rack'.1 : « if the projectors ordered were referenced in the catalog of the German law company Franz Sill GmbH, the order form, which mentioned that they should be provided with additional protection by 'rilsanization' and equipped with a fixing foot, also treated according to the same process and shortened to the maximum to reduce the bulk of the devices in order to facilitate the cleaning of the gutter, specified the particular characteristics that they should have in order to meet the precise needs of the site to which they were intended In other words, the Court of Cassation found that the required modifications were specific to meet precise needs, conferring on the contract the character of a hire of work. [...]

[...] As the Court has stated in its previous jurisprudence (Civ. 3e June 2011, appeal n° 09-69.894), the contractor who has indemnified the contractor cannot act in guarantee against the manufacturer by invoking common law liability, and not the protective provisions of Articles 1792 and following of the Civil Code. In the judgment of 20 April 2022, the Court of Cassation confirmed this jurisprudential line by reiterating that the manufacturer's liability towards the contractor cannot fall within the regime of Articles 1792 and following. [...]

[...] Therefore, the qualification of a business contract should be retained each time intellectual and material performance prevails over the simple transmission of a good, without the need to explicitly explain this reasoning in the texts.7 The Henri Capitant Association, in its preparatory work, also mentions 'contracts for the manufacture of movable property' among the specific service contracts, without proposing a precise definition. However, the definition it retains of a service contract contract whereby the service provider must perform work independently for the benefit of the client' (art. 69) - would lead to a solution identical to that resulting from the application of the economic criterion. 8 This lack of precision in the reform project highlights the persistent difficulty of the dichotomy between sale contract and business contract that the present judgment of the Court of Cassation tries to clarify. [...]

[...] 3e Oct n° 90-11.753) according to which there is a contract of work as soon as the contract relates not to predetermined things, but to a specific work intended to meet the particular needs of the client. This approach opposes the classical criterion, which privileged the accessory by considering that a contract involving both the provision of goods and a work service should be analyzed as a sale when the material element prevailed over the service element (Civ. 1re Apr n° 74-14.436). [...]

[...] The interest of this reflection is reinforced by the draft reform of the law on special contracts, which intends to consecrate a specific category of 'mobile business contract'. According to the proposed definition, it is the 'contract by which the entrepreneur manufactures or produces a movable good designed to meet the specific needs of the client'. This formulation, by retaining only the criterion of specificity, leaves aside the economic criterion, the importance of which is demonstrated by the judgment of October 12, 2022. [...]