Business Contracts

Whereas in a contract for services, the contractor is obliged to carry out work , in a bailment agreement the “depositary” must, under Article 1915 of the Civil Code , hold the thing with a view to its return. In addition to this difference in nature, the two contracts differ in their legal classification. Whereas the bailment contract is a contract in rem , the contract for services falls into th …

Bailment agreement (contrat de dépôt)

Whereas in a contract for services, the contractor is obliged to carry out work , in a bailment agreement the “depositary” must, under Article 1915 of the Civil Code , hold the thing with a view to its return. In addition to this difference in nature, the two contracts differ in their legal classification. Whereas the bailment contract is a contract in rem , the contract for services falls into the category of consent-based contracts, which are formed “by the mere exchange of consents, however expressed” . However clear this distinction may appear, the risk of confusion between these two contracts is not excluded, and case law remains at variance on the subject, sometimes adopting a single classification as a contract for services or a bailment agreement , sometimes successively one and the other by application of the maxim that the accessory follows the princpal.

Hesitations have arisen, for example, when the project owner entrusts an item to a contractor for the purpose of carrying out his work, with the latter being under the characteristic obligation of a bailment contract  to keep and return the item in its custody, with the consequence that he is thereby liable in the event of non-performance or loss of the item entrusted .

Contracts providing for the handover of a vehicle to a garage for repair have given rise to a great deal of litigation. In principle, the garage owner enters into a contract for services, since he is responsible for carrying out repairs. However, in addition to the repair work, the contract also requires the garage to hand over the vehicle, keep it and store it before and after carrying out the work. The contract thus comprises two distinct phases: firstly, the repair of the vehicle; secondly, its preservation before and after the work is carried out. In a ruling in which the existence of a contract for services was not alleged - the vehicle deposited having been destroyed even before it was repaired - and in which, consequently, only the existence of a bailment agreement was upheld, the Court of Cassation stated that the existence of a contract for services does not preclude the contractor from also being bound by the obligations of the bailee . Without even referring to the bailment agreement, the Court held that a garage owner who, under a contract for services, breaches his obligation to take good care of the vehicle entrusted to him for repair, is liable in the event of theft of equipment inside the vehicle. The Court of Cassation went on to establish the principle that the bailment agreement must be considered as ancillary to the contract for services . Moreover, while a bailment agreement fo a vehicle is, unlike a contract for services, “an essentially gratuitous contract”  , the Court held that in the context of a bailment agreement for the deposit of a vehicle with a garage, which is ancillary to a contract for services, the deposit must be presumed to have been made for consideration . As a result, it is up to the owner of the vehicle to prove that it is free of charge  and, in the absence of any agreement between the parties, the court may fix the remuneration of the garage owner, specifying the breakdown of that remuneration . This presumption applies in cases where the vehicle has been handed over to the garage, in the course of its commercial activity, to enable it to implement amicable or legal expert appraisal operations, and where the garage informs the vehicle owner in writing of the onerous nature of the deposit . This is not the case, however, when a vehicle is deposited with a garage for expert appraisal without a contract for services having been concluded with the garage . In a judgment dated 8 October  2009, the Court of Cassation ruled that a contract for the deposit of a vehicle at a garage exists, insofar as it is an accessory to the contract for undertaking services, independently of any caretaking agreement . As a result, the owner who delivers his broken-down vehicle to the garage, initially with a view to having it repaired, rightly asserts the existence of a bailment agreement between himself and the garage , and the depositary's claim for payment of storage costs cannot be rejected .Thus, if the garage gives formal notice to the owner to collect the vehicle deposited under the contract for services, while at the same time informing him of the onerous nature of his custodial services, he can demand payment of the latter on receipt of the formal notice and, in accordance with Articles 2286 and 1948 of the Civil Code, claim a right of retention of the vehicle until payment of the price .

In a dispute concerning the repair of a fairground attraction, which involved a transport phase prior to repair, the Court of Cassation ruled out the existence of a bailment agreement, holding that when damage to a ride entrusted to a company for repair occurs during its transfer by the repairer's employee to the premises where it was to be repaired, the company in question incurs liability not under a bailment agreement, but for the performance of the contract for services it has agreed to . This principle has been confirmed in the context of construction work. The contract concluded between a private individual and a metal joinery installation company thus constitutes a contract for services and not a bailment agreement since the frames in question were equipment intended, after preparation, to be installed on a building. The fact that the successful bidder examined the frames in the company's workshop is not sufficient to demonstrate the existence of a bailment agreement, since the possession of another person's property does not in itself establish the existence of such an agreement .

Difficulties of classification have also arisen when the contract involves the provision of care to preserve the thing deposited, since the obligation to preserve and guard the thing constitutes another obligation characteristic of a bailment agreement. The courts thus consider a contract for the boarding of a horse in return for remuneration to be a contract for services, a horse training contract  to be a contract for services, and a contract providing for both boarding and an obligation to train a horse for the purpose of enhancing its value to be a mixed contract, partly a contract for services and partly a salaried bailment agreement . If the animal is injured in its stable, the damage occurs within the framework of the performance of the obligation of care and lodging and falls under the bailment agreement; if it occurs on the occasion of the training or exploitation of the horse, it falls under contract for services . In the event of injury to the animal in the context of the lodging and care obligation, the custodian will only be able to exonerate himself by demonstrating that the damage, i.e. the injuries sustained by the horse, is not imputable to fault on his part , whereas this will not be the case where the accident could only have occurred as a result of the opening of the access gate to the equestrian farm, allowing the horse to escape to fight with other horses .

Finally, with regard to the classification of a contract for services in the area of copyright, the Court of Cassation recently ruled that when, in the early 1970s, a company entrusted a comic strip artist and scriptwriter with the creation of the graphic universe of characters and the scriptwriting of a film, the parties entered into a contract for services which, given the drawing reproduction techniques of the time, necessarily included a phase of delivery of the material support for the works, characteristic of a bailment agreement .  Thus, when a bailment agreement forms an appendix to a contract for services, it entails a perpetual obligation on the part of the bailee to return the thing deposited in kind, and continues to exist after the commissioned work has been completed, so that the abandonment after 1976 of the film project which formed part of the contract for services at issue did not put an end to the bailment agreement concerning the material supports for the drawings implemented by the deceased draftsman. It follows that the depositary remains under an obligation to hand over the material supports for the drawings made, and cannot claim ownership of the works .

Cass. com., 23 October 2019, LawLex202200004533JBJ, holding that when a worker, within the meaning of Article 1789 of the Civil Code, provides only his labor or industry, he is liable only for his own misconduct if the thing perishes, and must establish that he has not committed any fault causing said loss in order to avoid liability.

Civil Code, Art. 1915: “In general, a “deposit” is an act by which one receives something from another, with the obligation to keep it and return it in kind”; Civil Code, Art. 1919: “It is only perfected by the real or fictitious delivery of the thing deposited. Fictitious surrender is sufficient when the depositary is already in possession, on some other basis, of the thing which is agreed to be left to him as a deposit”.

Cass. 1re civ., 5 avril 2005, LawLex202200004056JBJ, adding that a Court of Appeal cannot reject a claim for payment of storage costs made by a garage owner who has taken custody of a vehicle after repairs, on the grounds that the garage owner had to demonstrate that such storage was in return for payment.

CA Basse-Terre, 26 October 2020, LawLex202200004137JBJ.

CA Rouen, 5 January 2017, LawLex202200004542JBJ.

CA Bordeaux, 9 November 2020, LawLex202200004516JBJ.

Cass. 1re civ, 8 October 2009, LawLex202200004513JBJ; see in the same vein: CA Versailles, 10 May 2012, LawLex202200004545JBJ.

CA Rennes, 7 December 2012, LawLex202200004562JBJ.

Cass. 1re civ, October 8, 2009, LawLex202200004513JBJ; see in the same vein: CA Toulouse, 22 September 2010, LawLex202200004568JBJ.

Cass. 1re civ, 26 January 1999, LawLex202200003856JBJ.

Cass. 1re civ, 17 February 2004, LawLex202200004528JBJ.

Civil Code, Art. 1109, para. 3: “A contract is real when its formation is subject to the delivery of a thing”.

CA Angers, 9 February 2010, LawLex202200004510JBJ, holding that the contract by which a horse is entrusted to a trainer constitutes a contract for services resulting in an obligation on the part of the trainer to use his knowledge and skill to the best of his ability to improve the horse's sporting performance, the onus being therefore on the owner of the horse, who is invoking the non-performance defense in order to refuse to pay the agreed price, to prove that the trainer is at fault, and not on the trainer to establish that he has performed his obligation.

CA Poitiers, 7 June 2013, LawLex202200004521JBJ; CA Caen, 30 October 2018, LawLex202200004555JBJ; See also in this spirit: CA Rouen, 28 November 2019, LawLex202200004567JBJ, holding that the handing over of a horse to a stable with the task of caring for it, housing it and making it “work” constitutes a mixed bailment agreement/contract for services.

CA Angers, 20 September 2011, LawLex202200004552JBJ.

Cass. 1re civ, 3 July 2001, LawLex202200004515JBJ.

CA Paris, 19 October 2012, LawLex202200004561JBJ.

Cass. 1re civ, 20 February 2019, LawLex202200004262JBJ, upholding CA Paris, 28 February 2017, LawLex202200004258JBJ.

CA Paris, 28 February 2017, LawLex202200004258JBJ.

Civil Code, Art. 1109, para. 1: “A contract is consensual when it is formed by the mere exchange of consents, whatever the mode of expression”.

CA Paris, 28 February 2017, LawLex202200004258JBJ, stating that, under Article 1915 of the Civil Code, a bailment agreement implies the act by which one party receives something belonging to another under the obligation to keep it and return it in kind, such that, insofar as it constitutes the annex to a contract for services, the contractor is subject to a perpetual obligation of restitution.

For a contract for the development of photographic negatives: Cass. com., 23 October 2019, LawLex202200004533JBJ, stating that a worker within the meaning of Article 1789 of the Civil Code, who, when he only provides his labor or industry, is only liable for his own breach if the thing entrusted to him perishes, must establish that he has not committed any fault at the origin of said loss in order to be exempt from liability.

Cass. 1re civ, 11 July 1984, LawLex202200004524JBJ; see for a recent application: CA Bordeaux, 12 May 2022, LawLex202200004519JBJ.

Cass. 1re civ, April 5, 2005, LawLex202200004056JBJ; October 8, 2009, LawLex202200004513JBJ. For a contrario application of the theory that the accessory follows the principal: see CA Riom, 5 June 2019, LawLex202200004565JBJ, noting that if the contract by which a garage agrees to repair a vehicle, on condition that the owner provides it with a used engine, constitutes a conditional contract for services, implying the existence of an accessory bailment agreemen tpresumed to have been concluded for consideration, in the present case, the owner did not supply the engine in question, so he could not claim to have entrusted the garage with the task of keeping his vehicle for three years, free of charge, under a bailment agreement ancillary to the contract for services, since there never was such a contract for services

Cass. 1re civ, 5 April 2005, LawLex202200004056JBJ; see for a recent application in the context of a manufacturer's recall campaign: CA Aix-en-Provence, 9 November 2021, LawLex202200004219JBJ.

Business Contracts

285. Bailment agreement (contrat de dépôt)

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285. Bailment agreement (contrat de dépôt)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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