Business Contracts

Article 1353 of the Civil Code, resulting from the reform of contract law, takes up the provisions of former Article 1315: “ A person who claims the performance of an obligation must prove it. Conversely, a person who claims to have been discharged must justify the payment or the circumstance which produced the extinction of the obligation”. Applying this provision to contracts for services, it fo …

Burden and subject-matter of proof

Article 1353 of the Civil Code, resulting from the reform of contract law, takes up the provisions of former Article 1315: “ A person who claims the performance of an obligation must prove it. Conversely, a person who claims to have been discharged must justify the payment or the circumstance which produced the extinction of the obligation”. Applying this provision to contracts for services, it follows that the burden of proof does not systematically fall on the contractor or the client, but on whichever of the two acts in performance of the contract. More often than not, the contractor seeks to obtain payment for the work he has carried out, while the client sues the contractor for damages arising from his actions, with both parties having to prove the existence of a contract for services.

1°) Proof of the existence of a contract for services 

The Court of Cassation has ruled that anyone claiming the existence of a contract for services must provide proof of this, the fact that it is a consensual contract not subject to any specific formal requirements being irrelevant . In fact, the courts consider that it is up to the undertaking which has not taken the precaution of properly entering into a contract with its customer, setting out the respective undertakings of the parties, before taking action and performing its services, to provide proof of the elements which make the existence of the contract for services in question probable . In a case where the onus of proof of a contract for services rested with a chartered accountant who was claiming payment for his services, the Lyon Court of Appeal ruled that the existence of a mutual understanding between the parties, and therefore of a contract for services, was sufficiently demonstrated when, even in the absence of a written contract between the chartered accountant and the undertakings concerned, it was established that the latter had entrusted him with their accounting from 2012 onwards, and that the invoices issued had been paid without discussion until 2015 . Conversely,, in the absence of proof of the existence of a contract between the parties, the contractor's claim for payment cannot be upheld .

Even if the validity of a contract for services is not subject to any formal conditions, the courts consider that Article 1353 of the Civil Code requires a person seeking payment under such a contract to not only provide proof of the contract's existence, but also of the content of the parties' agreement on both the exact nature of the services ordered and their price . In practice, by requiring proof of both the existence and the content of the contract, the courts place a heavy burden on the contractor seeking payment, who must also prove that he has performed the work commissioned .

2°) Proof of the content of the contract

Proof of the content of the obligation asserted by the contractor may relate not only to the nature and scope of his performance, but also to the agreed price. In the Court of Cassation's view, it consists in the contractor demonstrating that he has carried out the work invoiced on the order or with the agreement of the client, in order to obtain payment for the work he is claiming . In other words, the contractor must prove (i) that the customer ordered or accepted the work (ii) as performed , and not just one or the other. Thus, a court of appeal cannot uphold a contractor's claim for payment for clearing work without establishing that the work was actually carried out , or on the grounds that the invoice includes a delivery note following the customer's order, even though no estimate was drawn up and, in the absence of any specific instructions, the contractor acted “in the best interests of his customer” . Moreover, the project owner's tacit acceptance of works not originally planned can only result from clear and unequivocal acts demonstrating their intention to accept them; merely realizing that the works have been carried out is not sufficient to establish their willingness to consent to them . Similarly, the mere fact that the client has paid a higher sum than that resulting from the estimates he has accepted is not sufficient to prove either that additional work was ordered or that it was carried out, and therefore cannot justify the contractor's claim for payment in respect of said work . 

Conversely, a client who, in order to avoid or limit his obligation to pay, disputes not the cost of the work claimed, but its completion, will have to prove that the work described in the estimate was only partially carried out .

As regards the price of the services rendered, it is up to the contractor seeking payment to establish the amount of his claim and, to this end, to provide the information needed to determine it, the said amount having to be assessed by the trial courts on the basis, in particular, of the quality of the work performed . Pursuant to the principle that no one may constitute evidence on their own behalf, proof of consent to the price of the service cannot be based exclusively on an invoice issued by the contractor .

In addition, the taking into consideration of business practices may be raised by one party or denied by another. On this point, the Court of Cassation has ruled that, in application of Article 1194 of the Civil Code, the usages developed by a given trade or profession are intended to govern, in the absence of any agreement to the contrary, not only relations between its members, but also those of the latter with persons outside the trade or profession, once it has been established that the latter, having become aware of them, have accepted them. Thus, even if its corporate object is not specific to steel reinforcements, the company which, after having taken note of a quotation mentioning the submission of the contract to the standard practices and general conditions of the Association Professionnelle des Armaturiers, ordered the manufacture and installation of 50 tons of steel reinforcements, is not founded in pleading the unenforceability of these standard practices and general conditions .

The Court of Cassation is just as rigorous in upholding the burden of proof as it is in defining its object. It therefore considers that a court of appeal cannot state, in order to uphold a contractor's claim for payment relating to work for which neither a purchase order nor an estimate had been drawn up, that it is up to the customer claiming non-conformity of the goods delivered to establish the exact nature of what had been ordered, without reversing the burden of proof . Similarly, a judgment must be overruled where, in order to uphold a contractor's claim for payment, it is held that the customer, who had signed the purchase order for the clearing work in question following severe flooding, failed to prove that her consent was vitiated when she signed it, even though the certificates of volunteers who had helped to clean the apartment showed that the company had no need to intervene, when it is up to the person seeking performance of an obligation to prove it .

Lastly, the Court of Cassation has held that when a party bears the burden of proof, such proof cannot be inferred from the silence of the opposing party. Consequently, in order to uphold a contractor's claim for payment, a court of appeal cannot consider that the customer has neither made the slightest complaint about the work carried out, nor answered the various reminders for payment sent .

Cass. 3e civ, 18 February 1981, LawLex202200003662JBJ.

CA Lyon, 27 April 2021, LawLex202200004191JBJ.

CA Toulouse, 11 June 2024, LawLex202400004486JBJ.

Cass. 1re ch. civ. 30 September 2008, LawLex202200008835JBJ.

Cass. 1re civ, 19 June 2008, LawLex202200003665JBJ.

Cass. 1re civ. 18 November 1997, LawLex202200006747JBJ.

Cass. com, 4 October 2023, LawLex202300012681JBJ.

Cass. 1re civ, 21 March 2006, LawLex202200003815JBJ.

Cass. 1re civ, 25 January 2017, LawLex202200003817JBJ.

Cass. 1re civ, 25 January 2017, LawLex202200003817JBJ, cited above.

CA Lyon, 9 June 2022, LawLex202200004103JBJ.

Cass. com, 20 September 2017, LawLex202200004206JBJ; See, in this regard: CA Toulouse, 28 November 2023, LawLex202400006507JBJ, holding that in the absence of proof of any order for work by the project owner, which was carried out at the request of his tenant when he had not authorized the tenant to sign the estimate or give consent, the contractor's claim for payment cannot be upheld.

CA Besançon, 23 May 2017, LawLex202200004189JBJ; CA Riom, 26 September  2023, LawLex202400006522JBJ; CA Nîmes, 12 September 2024, LawLex202400006527JBJ.

This solution combines proof of the existence of the contract with proof of performance of the obligation relied on by the plaintiff, even though the former relates to the formation of the contract for services, while the latter concerns its performance.

Cass. com., 20 September 2017, LawLex202200004206JBJ

Cass. com, 9 November 1987, LawLex202200008834JBJ.

Business Contracts

294. Burden and subject-matter of proof

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294. Burden and subject-matter of proof

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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