Business Contracts

A contract for services is a consensual contract i.e. exclusively based on the exchange of consent, the validity of which is not subject to any specific formality . As a result, the requirements of a code of ethics, which prescribes the signing of a written contract defining a chartered accountant's duties, although subject to disciplinary sanctions, do not determine either its existence or its va …

Lack of formal requirements

A contract for services is a consensual contract i.e. exclusively based on the exchange of consent, the validity of which is not subject to any specific formality . As a result, the requirements of a code of ethics, which prescribes the signing of a written contract defining a chartered accountant's duties, although subject to disciplinary sanctions, do not determine either its existence or its validity . As there are no formal requirements for the formation of a contract for services, the contract may be based on a simple agreement between the client and the contractor, independently of the signing of a contract , or it may be purely oral .  The trial courts can also deduce from the circumstances whether a contract has been concluded or renewed. For example, a contract for services by an automatic carwash undertaking may be deemed to have been formed when the operator makes an offer to contract (pollicitation) - which results from the very presence of the carwash equipment made available to the public - and when the customer accepts this offer, by responding to it and following the steps required to activate the machine . According to the Court of Cassation, a court of appeal may consider that the relationship between the parties continued within the framework of a contract for services after the termination of the initial agreement for the disposal of household waste, since the parties' agreement on the nature of the service can be deduced from the fact that the household waste continues to be dumped and accepted . Similarly, a court of appeal rightly deduces the existence of a contract for services between the parties, when the disputed work was carried out by the company concerned with the approval of the interested party, who was present at site meetings, paid an initial invoice and accepted the work with some reservations .

In the absence of a written agreement, an exchange of letters containing perfectly clear and unambiguous terms as to the nature of the work and the payment for it, is evidence of the existence of a contract for services . Similarly, an e-mail sent by an undertaking to an accountancy firm requesting details of the tax rules applicable to expatriate employees, to which the firm replied with a consultation answering the questions asked, together with the corresponding invoice, does not constitute making contact and requesting general information with a view to a possible intervention, but an order in clear and precise terms which justifies the payment of services in performance of the contract for services .

Where justified by the complexity of the works or services to be provided, the parties may enter into discussions and negotiations with a view to concluding a contract for services . The negotiation phase, which precedes the conclusion of the main contract, is accompanied by the drafting and exchange of various preparatory documents. Among these is the estimate, often used "to describe the work to be implemented and estimate the price . As a contract for services is a consensual contract, it is settled case law that the drawing up of a descriptive estimate is not necessary for its existence . Consequently, according to the Court of Cassation, a court of appeal cannot exclude the existence of a new contract for services between the parties on the sole grounds that the disputed estimate had not been accepted by the client, and that the invoices made out in his name were no more than a commercial proposal . The same applies in the case of a claim for payment of fees by a project manager, on the sole grounds that the latter is claiming that the work was carried out on the basis of an unsigned estimate, without substantiating either the claim or the fact that the work was agreed for valuable consideration or that the price was specified, even though the contract for works and services (contrat de louage d'ouvrage), presumed to have been concluded for valuable consideration, is a consensual contract which is not subject to any particular requirement as to form .  Even if a quotation is not essential to the formation of a contract for services, its classification and remuneration are often the subject of debate. While the former depends on the intention of the parties, in principle the estimate does not give rise to remuneration for the contractor, unless otherwise agreed . However, this is not the case for architects, whose work involves drawing up plans and specifications that constitute a work in themselves, and for whom the client's refusal does not in itself preclude payment .

Cass. 3e civ, 18 June 1970, LawLex202200003659JBJ.

CA Lyon, 9 June 2022, LawLex202200004103JBJ.

Preliminary draft of the law on special contracts, Art. 1759, para. 1.

Cass. 3e civ, 18 June 1970, LawLex202200003659JBJ. See in this vein: CA Poitiers, 26 October 2012, LawLex202200004302JBJ; CA Paris, 28 February 2017, LawLex202200004258JBJ, holding that a written document or descriptive estimate is not necessary for the existence of a contract for services; CA Paris, 6 February 2020, LawLex202200008840JBJ; CA Riom, 27 April 2021, LawLex202200008830JBJ.

Cass. com, 16 May 2018, LawLex202200003666JBJ.

Cass. 3e civ, 17 December 1997, LawLex202200003682JBJ. See, in the same vein, Cass. 3e civ. 9 February 2011, LawLex202200008825JBJ, holding that, as the object of the architect's contract is the realization by the architect of draft plans and specifications for works, the mere refusal by the project owner of a project submitted to him is not such as to establish the absence of a contract binding him to the architect.

Preliminary draft reform of the law on special contracts, Art. 1759, para. 2.

Cass. 3e civ, 9 February 2011, LawLex202200008825JBJ, cited above.

CA Grenoble, 8 July 2021, LawLex202200004283JBJ.

CA Rennes, 11 January 2018, LawLex202200008828JBJ.

CA Reims, 26 July 2005, LawLex202200008890JBJ.

Cass. com. 28 November 2000, LawLex202200000806JBJ.

Cass. 3e civ, 29 June 2017, LawLex202200004264JBJ.

CA Riom, 29 March 2022, LawLex202200004193JBJ.

Cass. 1re civ, 1 July 2015, LawLex202200003683JBJ.

Business Contracts

291. Lack of formal requirements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

291. Lack of formal requirements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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