Business Contracts

By way of exception, the validity of an agency agreement may be subject to the requirement of a written document, either for certain special mandates, or through the application of a borrowed formal requirement.
1) Special agency agreements (mandats spéciaux)
The law requires a private agreement for the validity of a number of agency agreements, such as the real property agency agreement. Accordin …

Solemn formal contract (by exception)

By way of exception, the validity of an agency agreement may be subject to the requirement of a written document, either for certain special mandates, or through the application of a borrowed formal requirement.

1) Special agency agreements (mandats spéciaux)

The law requires a private agreement for the validity of a number of agency agreements, such as the real property agency agreement. According to the public policy provisions of Articles 1 and 6 of the Hoguet Law of 2 January 1970, agreements entered into with natural or legal persons who, on a regular basis, engage in or assist in transactions involving the property of others and relating, in particular, to the sale of real property, must be drawn up in writing and specify the terms of their remuneration  and the party handling them . 

In effect, the Court of Cassation has ruled that the formal provisions of the Hoguet Law, which must be complied with in any real estate agency agreement, and which are intended solely to protect the principal in his dealings with the agent , are mandatory on pain of relative invalidity, so that a tenant to whom a notice to sell has been given by a real estate agent specially appointed for the purpose, cannot invoke the failure to comply with certain of these formalities as grounds for invalidating the power granted to the agent . In addition, the absence of a signed agency agreement for the sale of real estate leads to the invalidity of the contract, which can only be covered by the subsequent ratification by the principal of deeds carried out by the real estate agent without a power of attorney .

Similarly, pursuant to Article 20 of the Sapin Law of 29 January 1993, the purchase of advertising space may only be undertaken by an intermediary acting on behalf of an advertiser, within the framework of a written agency agreement, which sets out the terms and conditions of the agent's remuneration, detailing, where applicable, the various services to be provided under the agreement. Consequently, in the absence of a written agency agreement complying with the requirements of this law, an ad agency cannot obtain payment for advertising services . In addition, advertising insertion orders are invalid when no agency agreement has been entered into by an advertiser with an advertising agency acting as intermediary . 

Under article R. 124-3 of the Civil Enforcement Proceedings Code (Code des procédures civiles d'exécution), persons entrusted with the out-of-court collection of other people's debts may only do so after concluding a written agreement with the creditor, giving them the power to collect on his or her behalf . 

Article L. 222-17 of the Sports Code also requires that any agency agreement by which a sports agent engages in the activity of introducing parties interested in the conclusion of the contracts referred to in Article L. 222-7 be in writing, any agreement to the contrary being deemed to be null and void (unwritten), although it does not require that the contract for which it lays down the legal regime be drawn up in the form of a single written document . The Court of Cassation has specified that, while a sports agent agreement may be drawn up in electronic form, the absence of an electronic signature, which is one of its conditions for validity, may be covered by voluntary performance of the contract with knowledge of the cause of invalidity, equivalent to confirmation, when neither the identity of the originator of the e-mail nor the authenticity of its content is contested . 

Where the formal nature of a document is required by law, the power of attorney given to perform that document must, on pain of invalidity, be subject to the same solemnity, and inversely . Thus, where the purpose of the form of the act to be performed is to protect intent, any agency agreement to perform that act must be subject to that same requirement, so that the agency agreement to consent to specific performance must be given in an authenticated form, with notarization being necessary to ensure that the debtor has consented to it in full knowledge of the facts . 

However, the Court of Cassation considers that an agency agreement to execute an authenticated deed should only take on such a form if the execution of the deed in an authenticated form is required by law , which is not the case for a contractual lease extension . 

Furthermore, according to the Court of Cassation, since the requirements relating to the handwritten statement to be included in a deed of surety are not merely rules of evidence, but are intended to protect the guarantor, it follows that a private agency agreement to act as guarantor must be subject to the same requirements and include either, where the amount of the obligation guaranteed is determinable on the date of the guarantor's commitment, a handwritten statement of the amount in words and figures, or, where the amount is not determinable and the guarantee is therefore indefinite, a handwritten statement expressing in some form, but explicitly and unequivocally, the guarantor's knowledge of the nature and extent of the commitment he intends to enter into .Therefore, in order to declare a joint and several bond commitment valid, a court of appeal cannot simply note that the private agreement by which a widow gave her son-in-law authority to intervene in her name and on her behalf “in a deed to be received” and to commit her, as joint and several guarantor, to the repayment of a loan, satisfies the conditions of the agency agreement on the grounds that the interested party dated, signed and preceded her signature with the words “bon pour pouvoir” (valid as power of attorney)  .

Lastly, the Court of Cassation has specified that the dual capacity in which the signatory of a legal document acts, on the one hand, in a personal capacity and, on the other, as representative of the undertaking of which he is a partner, does not impose the need for a duplicate signature as a condition for the validity of the document .

Cass. 3e civ, 17 July 1980, LawLex202200008643JBJ, noting that a court of appeal cannot, in order to uphold a claim for commission from a real estate agent, in remuneration for the assistance he had given to the purchasers for the purchase of a building, state that it is sufficient to note that the purchasers were bound, without noting the existence of a written agency agreement previously issued, fixing the remuneration of the real estate agent; Cass. 1re civ, 12 July 2006, LawLex202300007385J. 

Cass. 1re civ. 26 November 1985, LawLex202200008644JBJ.

CA Versailles, 22 February 2024, LawLex202400007943JBJ.

Cass. 1re civ. 11 February 1997, LawLex202300007457JBJ,

CA Rennes, 18 June 2024, LawLex202400004709JBJ.

Cass. 1re civ., 5 January 1973, No 71-13.779.

Cass. 1re civ, 31 May 1988, LawLex202200008648JBJ, stating that a court of appeal cannot hold that Article 1376 (formerly Art.  1326) of the Civil Code is not applicable to a private agreement in which one person has given another a mandate to act as guarantor for obligations relating to a loan, and to which the principal has only affixed the following handwritten note: “lu et approuvé, bon pour mandat” (read and endorsed, valid for mandate) on the grounds that it is an agreement containing no commitment to pay and is distinct from the surety bond, whereas the private agency agreement to act as guarantor is subject to the same formal requirements as the surety bond for which it was concluded; CA Versailles, 22 February 2024, LawLex202400007943JBJ.

Cass. 1re civ, 19 June 1990, LawLex202200008649JBJ. See also. Cass. 1re civ., 4 June 2002, LawLex202200008650JBJ, noting that a private agency agreement to act as guarantor must include, when the amount of the obligation guaranteed is determinable on the date of the guarantor's commitment, the principal's handwritten statement of the amount in words and figures, so that a court of appeal cannot declare the disputed surety commitment valid, without adducing extrinsic evidence capable of establishing that, on the date the agency agreement was signed, the principal was aware of the nature and extent of the commitment he was granting to contract in his name.

Cass. com. 9 May 2018, LawLex202200007576JBJ.

CA Montpellier, 26 September 2024, LawLex202400007153JBJ; CA Poitiers, 18 June 2024, LawLex202400004709JBJ.

Cass. mixte, 24 February 2017, LawLex202000001820JBJ.

Cass. 1re civ, 19 January 2022, LawLex202200008645JBJ.

CA Aix-en-Provence, 7 February 2010, LawLex201200000753JBJ; CA Nancy, 16 February 2011, LawLex201200000842JBJ, noting that since advertising contracts must be in writing and set out the terms and conditions of the agent's remuneration, payment of invoices for advertising campaign expenses cannot be obtained in the absence of such a document.

CA Paris, 16 May 2012, LawLex201200002198JBJ.

CA Caen, 5 March 2015, LawLex202300011771JBJ, noting that the invalidity of an agency agreement, drawn up electronically, by which an undertaking has given an irrevocable power to a debt collection agency to exercise all the creditor's rights in its place and on its behalf, and in particular to initiate recovery proceedings, cannot usefully be invoked, where the electronic transmission medium used is in keeping with the rules governing the subscription of contracts online, through the use of secure codes.

Cass. 1re civ, 11 July 2018, LawLex202200003507JBJ.

Cass. 1re civ., 7 October 2020, LawLex202200003478JBJ.

Business Contracts

475. Solemn formal contract (by exception)

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475. Solemn formal contract (by exception)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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