Business Contracts

The admissibility of methods of proving a contract for services depends on whether it is civil or commercial in nature with regard to the defendant . If the contract for services is commercial in nature, it can be proven by any means . If it is of a civil nature, the freedom of proof will apply, as in commercial matters where all methods of proof are allowed, as long as the value of the contract i …

Admissibility of evidence

The admissibility of methods of proving a contract for services depends on whether it is civil or commercial in nature with regard to the defendant . If the contract for services is commercial in nature, it can be proven by any means . If it is of a civil nature, the freedom of proof will apply, as in commercial matters where all methods of proof are allowed, as long as the value of the contract is less than EUR 1,500 under Article 1358 of the Civil Code . As an exception to this principle, a contract for services exceeding this threshold will be subject to written proof under Article 1359 , unless it is materially or morally impossible to obtain a written document  or there is a beginning case of evidence in writing .

Initially, however, the first civil chamber of the Court of Cassation had accepted the freedom of evidence in the case of an architect's contract exceeding the EUR 1,500 ceiling: it ruled that the assignment of an architect who, having realized sketches with a view to the construction of a building, delivered a major work following repeated representations by his client, characterized a contract (contrat de louage d'ouvrage), the existence of which could be proven by any means . The Court then reversed its position, holding that, in the absence of a written document or prima facie evidence of a written document, the production of standard plans for furniture intended for the modernization of stores, in full view of the client, does not constitute sufficient evidence to establish the existence of a contrat d'entreprise .

In so doing, it aligned itself with the position of the third civil chamber, which has always required a written document to establish the existence of a contract for services costing more than EUR 1,500. Thus, according to the third civil chamber, a contractor's claim for payment cannot be upheld on the basis of an invoice issued by the latter, even if it is extremely detailed in terms of the work implemented, its unit cost and the number of hours worked, without the existence of a written document or a beginning of proof in writing emanating from the opposing party . A court of appeal ruling ordering a company to pay the price of work claimed in execution of contracts for services was thus overruled on the grounds that, in order to prove a contract for services, there is no need for a written document, and that proof of contracts between the parties is established by the performance of the work, payments on account and the presence of a representative of the project owner at the acceptance stage . Furthermore, neither the presumption resulting from the client's silence in the face of the architect's claims, nor the out-of-court admission represented by the payment on account, constitute an admissible method of proof to establish the existence of an agreement on the particular method of calculation of the architect's fees .

The commercial chamber of the Court of Cassation adopts the same approach, confirming that the existence of a contract for services cannot be deduced from the mere implementation of work, without the existence of a previously established written document or prima facie evidence in writing establishing the existence of a claim .

In conformity with Article 1362 of the Civil Code, any written document issued by the person contesting an act, or by the person he or she represents, which renders credible the allegation, constitutes prima facie evidence in writing. However, in order to be valid as proof of a contract for services, such evidence in writing must be supplemented by additional elements . According to the Court of Cassation, a campaign account issued by the party claimed to have paid for the printing of electoral documents, which includes an undisputed invoice attesting to the fact, constitutes prima facie evidence in writing, sufficient to prove the presence of a contract for services, when supplemented by the extrinsic element resulting from the performance of the works in question . The same applies to a registered letter The same applies to a letter sent to the contractor with a check for the balance of the work when it is corroborated by a bailiff's report confirming that the work was properly carried out .

Furthermore, even if a contract for services is in principle evidenced in writing,when it concerns an amount exceeding EUR 1,500, proof can, by exception, be provided by any means when one of the parties did not have the material possibility or the motivation to obtain documentary evidence by application of Article 1360. Proof of this inability to obtain a written document is difficult to adduce. According to the Paris Court of Appeal, it cannot, in any case, result from the fact that the parties to the contract for services have maintained emotional and trust-based ties in the context of a cohabitation .

Finally, when the existence of a contract between the parties and its subject matter are not in dispute, the courts allow the use of witness testimony or uncorroborated evidence to interpret the contract or determine its scope .

For an application of this principle: Cass. 1re civ. 19 June 2008, LawLex202200003816JBJ, recalling that with regard to merchants, evidence may be adduced by any means, such that a letter submitted to the proceedings by a freelance photographer and emanating from the opposing party, an undertaking, in the context of a dispute relating to the assignment of photographic reproduction rights, constitutes prima facie evidence in writing sufficient to demonstrate the likely existence of a possible agreement between the parties.

Cass. 3e civ, 23 January 1969, LawLex202200003922JBJ.

Cass. com, 7 February 2006, LawLex202200008843JBJ.

Cass. com. 7 February 2006, LawLex202200008843JBJ.

CA Riom, 26 September 2023, LawLex202400006522JBJ.

CA Paris, 6 February 2020, LawLex202200008840JBJ.

Cass. 3e civ, 17 July 1972, LawLex202200003848JBJ.

Civil Code, Art. 1358: “Except where the law provides otherwise, proof may be provided by any means”.

Civil Code, Art. 1359: “A legal act concerning a sum of money or a value exceeding an amount fixed by decree must be proved in writing under a signed private or authentic deed. It can only be proved in addition to or against a writing establishing a legal act, even if the sum or value does not exceed this amount, by another writing under a signed private or authentic deed (...)”.

Civil Code, Art. 1360: “The rules laid down in the preceding article are subject to exceptions in the event of material or moral impossibility of obtaining a written document, if it is customary not to draw up a written document, or when the written document has been lost by reason of force majeure”.

Civil Code, Art. 1361: “Writing may be replaced by a formal admission, a decisive oath, or a prima facie proof in writing corroborated by another means of proof”.

Cass. 1re civ, 17 December 1964, LawLex202200003924JBJ.

Cass. 1re civ, 24 March 1987, LawLex202200008845JBJ.

Cass. 3e civ, 21 July 1999, LawLex202200008842JBJ, overruled a Court of Appeal for having made a demand for payment for works, without ascertaining the existence of a written document or prima facie evidence in writing.

Cass. 3e civ, 21 February 1990, LawLex202200008838JBJ

Business Contracts

295. Admissibility of evidence

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

295. Admissibility of evidence

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise