Business Contracts

Included in the category of contrats de louage ' (i.e. works and services contracts) , the louage d'ouvrage i.e the provision or hiring of the work or service is defined by Article 1710 of the Civil Code as “a contract by which one of the parties undertakes to do something for the other, in return for a payment agreed between them”. The party commissioning the work is the maître d'ouvrage (project manager) , sometimes referred to as the “donneur d'ordres” (principal) or client in the case law, or the propriétaire (proprietor) in the Civil Code , and the party carrying out the work is the  entrepreneur  or locateur d'ouvrage (contractor), sometimes designated by his profession, and also referred to in the Code  as the ouvrier  (workman).

The vague definition of “louage d'ouvrage” in Article 1710 of the Civil Code, amplified by the Code's ill-adapted and even obsolete references, has made it difficult to define this contract, from which many other agreements may adopt the title.  

Derived from the 1804  Civil Code classification, the term louage d'ouvrage   has been gradually phased out by the more modern term contrat d'entreprise   although it has not completely disappeared. The preliminary draft reform of the law on special contracts, published by the Ministry of Justice on 22 July 2022, prefers the term “contrat d'entreprise” to “louage d'ouvrage” or “contrat de prestation de services "(contract for the provision of services). Thus, according to the preliminary draft, a contract of work and services is a contract by which "the contractor independently carries out a work for the benefit of his customer, the client. The work may be material or intellectual. It consists of a good or a service”. 

Whatever the future definition adopted, the main characteristics of the contrat d'entreprise derive, in the current state of positive law, from the courts' interpretations of the provisions of Article 1710 of the Civil Code, which define the hiring out of work so broadly as to make it difficult to distinguish it from other contracts.

Civil Code, Article 1708: “There are two kinds of hiring contracts: those for goods and those for work”.

The “maître de l'ouvrage” should not be confused either with the “maître d'ouvrage délégué”, (delegated project manager), who is the person to whom the project manager gives a mandate to exercise all or part of his responsibilities and prerogatives in his name and on his behalf, or with the “maître d'oeuvre” (main contractor), i.e. the contractor whom the project manager entrusts with the construction of a building project.

Civil Code, Art. 1792-1, 1793 and 1796. In these articles, the term “propriétaire” is not to be understood in the literal sense, but as referring to any person who acts as an owner.

Civil Code, Art. 1788 to 1791, 1795 and 1798.

Civil Code, Art. 1779: “There are three main types of hiring work and industry: 1° Hiring of services; 2° Hiring of carriers, both by land and by water, who are responsible for transporting people or goods; 3° Hiring of architects, contractors and technicians for studies, estimates or contracts”.

The term “louage d'ouvrage” has been criticized by legal scholars for its general and indiscriminate nature. See in particular. SENECHAL, Le contrat d'entreprise, un enjeu du mouvement de recodification du droit des contrats, RLDC, No. 63, 1 Sept. 2009.

A former proposal for reform of special contract law initiated by the Association Capitant, published in 2017, defined a contract for the provision of services ("contrat de prestation de services") as one “by which the service provider must independently perform work for the benefit of the client” ( Art. 69). The text specified that “in line with the Ordinance of 10 February 2016, the term “provision of services” should replace that of “hire of work” and “contract of enterprise” and should be understood broadly”.

274. Definition