Business Contracts

Pursuant to Article 1128 of the Civil Code, an agency agreement must be lawful in its content for it to be valid, and any agreement which does not meet the conditions required for its validity is null and void, in accordance with Article 1178. Article 1162 further stipulates: “A contract may not derogate from public policy either by its stipulations or by its purpose, whether or not the latter was …

Subject-matter of contract

Pursuant to Article 1128 of the Civil Code, an agency agreement must be lawful in its content for it to be valid, and any agreement which does not meet the conditions required for its validity is null and void, in accordance with Article 1178. Article 1162 further stipulates: “A contract may not derogate from public policy either by its stipulations or by its purpose, whether or not the latter was known to all the parties”. According to case law, therefore, a post-mortem agency agreement, given in contravention of the rules of public policy enacted in matters of inheritance, has an unlawful purpose . The same applies to an agency agreement to transfer funds in breach of foreign exchange regulations . On the other hand, it is not unlawful for an unpaid agent, acting purely out of convenience, to  place a bet for a bettor at an urban betting shop, provided that the agent has not taken part in any risk and has not sought to implement a personal profit, nor to serve, even indirectly, the interests of third parties .

In accordance with Article 1128 of the Civil Code, which also makes the validity of any contract subject to certainty of content, the subject matter of the agency agreement must also be certain. Article 1163 of the Civil Code adds that the object of the obligation is a present or future benefit, and that it must be possible and determined or determinable, it being specified that “the benefit is determinable when it can be deduced from the contract or by reference to usage or the parties' previous relationship, without the need for a new agreement between the parties”. According to the Court of Cassation, it follows from these provisions that agency agreements for the sale of real estate which are not precisely defined, with no land registry reference, no plan attached, and no indication of the conditions of access to the property, are void as lacking a certain and determinable subject matter . Similarly, an agency agreement covering both the sale and donation of property, which the principals have signed even though, unlike their agent, they were unaware of the extent of the inherited assets, must be invalidated for lack of a definite subject matter .

Cass. 1re civ, 28 June 1988, LawLex202200008760JBJ.

Cass. 1re civ. 8 December 1976, LawLex202200008765JBJ, noting that in declaring valid the agency agreement to transfer funds from France to Italy with a view to investment in that country, a court of appeal cannot state that it has not been established that the funds were sent in breach of foreign exchange legislation, as the transfer was implemented, according to the parties' declarations, by bank transfer, without investigating whether the principal had the authorizations required by foreign exchange regulations. 

Cass. crim., 28 May 1970, LawLex202300012011JBJ.

Cass. 1re civ. 19 December 2013, LawLex202200000791JBJ.

Cass. 1re civ, 19 May 2021, LawLex202300007383JBJ, specifying that an agency agreement to sell or donate by mutual agreement undivided rights, concluded between a lawyer and heirs, is void for lack of a definite subject matter when it does not identify the real estate in which the heirs have undivided rights, or the undertakings in which they have shares, the location of the property is not specified, nor is its extent, and the undivided rights in the property are not defined.

Business Contracts

472. Subject-matter of contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

472. Subject-matter of contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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