Business Contracts

Article 1353 of the Civil Code, resulting from the reform of contract law, takes up the provisions of former Article 1315: “ Anyone claiming the performance of an obligation must prove it. Conversely, a person who claims to be discharged must justify the payment or the fact which produced the extinction of his obligation”. It follows from this rule, as applied to agency agreements, that the burden …

Existence of agency agreement

Article 1353 of the Civil Code, resulting from the reform of contract law, takes up the provisions of former Article 1315: “ Anyone claiming the performance of an obligation must prove it. Conversely, a person who claims to be discharged must justify the payment or the fact which produced the extinction of his obligation”. It follows from this rule, as applied to agency agreements, that the burden of proving the agency agreement lies with the party relying on it . This may be the principal, seeking to sue the agent for non-performance or improper performance of the agency agreement, or the agent, seeking to claim payment for his or her services, or a third party to the contract entered into in performance of the agency agreement, seeking to ensure that the principal fulfills his or her commitment .

Article 1985 of the Civil Code stipulates that agency agreements are to be proven in accordance with the title “Contracts or contractual obligations in general” ("Des contrats ou des obligations conventionnelles en général"). In other words, the ordinary civil law of evidence set out in Articles 1358 et seq. of the Civil Code applies to agency agreements. Thus, by virtue of Article 1358, evidence is unconstrained except in cases where the law provides otherwise. An agency agreement can therefore be proven by any means, provided it does not exceed a certain threshold set by decree. In accordance with Article 1359 of the Civil Code, any legal act involving a sum or value in excess of EUR 1,500 must in effect be evidenced in writing under private or notarial signature . However, a written record is no longer required if it is materially or morally impossible to obtain it, if it is customary not to draw up a written document, or if the written record has been lost through circumstances of force majeure (Art. 1360, Civil Code). Courts interpret these exceptions very restrictively. Thus, a son who claims to have given his father a mandate to manage funds belonging to him and his wife, which the latter refused to return, cannot rely on the moral impossibility of obtaining literal proof of said agency agreement . The absence of a written document may also be compensated for by an admission made by a court (aveu judiciaire), a decisive oath (serment décisoire) or prima facie evidence in writing corroborated by another means of proof (Art. 1361, Civil Code). Thus, a written response to a real estate agency's report, which “intellectually integrates” this first document, thus making the existence of a verbal agency agreement given by its author to the agency plausible , constitutes prima facie evidence in writing within the meaning of Article 1362 of the Civil Code . The same applies to letters sent to a notary by all the undivided co-owners of property with a view to its sale, when confirmed by the visit of two of them to the notary's office , or to a deed of surety, which would be illegally lacking in the absence of the principal's handwritten indication of the sum in words and figures, if supplemented by extrinsic evidence establishing the subscriber's knowledge of the nature and extent of the agreed commitment .

In commercial matters, the principle that evidence can be provided freely prevails (liberté de la preuve), in application of Article L.110-3 of the Commercial Code. Proof of a commercial agency agreement, whatever its value, may be adduced by any means against a merchant . Thus, according to the Court of Cassation, an agency agreement, the object of which is to obtain, on behalf of a merchant, legal indemnity for non-performance of a commercial agreement, is of a commercial nature with regard to the principal, so that the agent is entitled by any means to prove the reality and content of his engagement .

According to case law, proof of an agency agreement, whether express or tacit , is subject to the general rules governing the evidence of contracts . However, as the acceptance of a tacit agency agreement may result from its performance by the agent , by virtue of Article 1985, paragraph 2, proof of such an agreement has sometimes been readily accepted. For example, it has been held that proof of the existence of an agency agreement may be inferred both from the silence of the principal company, even though it was aware of the activities of its representative, and from the fact that it had transferred its shares to the purchaser approached by the latter . The Court of Cassation has therefore reiterated on several occasions that proof of an agency agreement, even tacit, remains subject to the requirements of Articles 1359 et seq. of the Civil Code . Proof of an agency agreement, even if tacit, cannot be established when there is no literal proof of the agency agreement and no documents are produced that could constitute a prima facie case in writing, allowing additional proof by witnesses . 

Trial courts cannot therefore accept the existence of a tacit agency agreement on the grounds that the project owner, mandated by the customer to act as an intermediary with the technicians, had accepted the estimate and that the project owner did not demonstrate that he had paid, even though the contract for the hire of work does not automatically confer on the project owner the power to represent him . Likewise, a court of appeal cannot accept that proof of an agency agreement accepted by a professional association can be inferred from the minutes of its executive board and the minutes of a meeting of its board of directors, which show that its mission consisted in distributing to its members information on their rights provided by a lawyer, whereas an agency agreement presupposes the power to perform a legal act in the name and on behalf of another . 

The rule according to which agency agreements are received in accordance with the general rules on the proof of agreements applied both between the principal and the agent, and in the principal's relations with third parties who contracted with the alleged agent . However, in a decision of 3 June 2015, the Court of Cassation nevertheless held that the third party could provide proof of the agency agreement by any means . 

Cass. 1re civ, 4 December 1973, LawLex202300007485JBJ.

CA Paris, 7 September 2023, LawLex202400002697JBJ.

CA Paris, 10 January 2024, LawLex202400008129JBJ: proof of the agency agreement, even if tacit, remains subject to the general rules of evidence for contracts and must comply with the requirements of former Article 1341 (now 1359) of the Civil Code;
CA Dijon, 7 March 2024, LawLex202400008023JBJ.

See, by way of illustration, CA Versailles, 9 March 2023, LawLex202300007610JBJ.

CA Rennes, 3 September 2024, LawLex202400002399JBJ.

Cass. com, 12 March 1996, LawLex202300011809JBJ.

Cass. 3e civ, 29 October 1970, LawLex202300007468JBJ; 4 March 2021, LawLex202200003679JBJ.

Cass. 3e civ, 29 October 1970, LawLex202300007468JBJ.

Cass. 3e civ, 4 March 2021, LawLex202200003679JBJ.

Cass. com, 3 March 2015, LawLex202200008817JBJ.

Cass. 1re civ, 19 December 1995, LawLex202200008946JBJ.

Cass. 1re civ, 3 June 2015, LawLex202200008350JBJ, overruled an order by a court of appeal ordering a bank to pay a savings account proprietor the amount of withdrawals made from his account by his wife during their marriage under the regime of separation as to property, on the grounds that the bank was unable to produce the power of attorney under which it had made the transfers, This was because the computer copy mentioning the existence of this power of attorney could not be used as dematerialized proof, nor as prima facie evidence in writing, since it emanated from the institution which opposed it, whereas the depositary banker can provide proof by any means of the agency agreement to which he is not a party; Contra, Cass. com., 5 June 2024, LawLex202400004223JBJ: proof of the existence of an agency agreement, even if tacit, is subject to the general rules of evidence arising from Articles 1359 et seq. of the Civil Code, so that, not concerning a specific sum, the agency agreement to receive registered letters that, according to the postal operator, the company in question had given to the receptionists, must be proven in writing.

Cass. 1re civ. 2 December 2015, LawLex202200002611JBJ: the existence of a property management agency agreement with a seller or supplier (professionnel) can only be proven in writing, and neither an apparent agency agreement nor ratification of the deed can override these mandatory rules.

Cass. 1re civ, 3 April 2007, LawLex202300012160JBJ. See, however, Cass. 1re civ, 9 May 1996, LawLex202300012161JBJ, holding that while the lawyer must, in his dealings with his client, be able to justify that the agency agreement effectively gave him the possibility of agreeing to the opposing claim, a court of appeal may, in the exercise of its sovereign discretion, find the moral impossibility for the lawyer to provide literal proof, due to the relationship of trust between him and his client, and the existence of a special agency agreement to acquiesce in the terms of his pleadings; CA Rennes, 26 September 2023, LawLex202400002399JBJ.

Civil Code, Art. 1362: "Any writing which, emanating from the person contesting an instrument or from the person he represents, renders the allegation plausible, constitutes prima facie evidence in writing.

Declarations made by a party at the time of his personal appearance, his refusal to answer or his absence at the appearance, may be considered by the court as equivalent to prima facie evidence in writing.

The reference to an authentic or privately signed document in a public register shall be deemed prima facie evidence in writing".

Cass. 1re civ, 20 April 1983, LawLex202200008355JBJ.

Cass. 1re civ, 11 January 2000, LawLex202300007469JBJ. See also. CA Aix-en-Provence, holding that the existence of a tacit agency agreement to sell a mobile home for the sum of EUR 4,000 can be inferred from an exchange of correspondence between the parties, in particular from two letters in which the undertaking acknowledges that the plaintiff gave it his mobile home on consignment, a letter in which the said undertaking admits having received an agency agreement to sell the property for the sum of EUR 4,000, and a final letter in which it objects to the price of EUR 5,000 proposed by the principal, provided that the written document can be replaced by prima facie evidence in writing corroborated by any other means of proof.

Cass. 1re civ, 4 June 2002, LawLex202200008650JBJ,

Cass. com, 26 May 1999, LawLex202300012162JBJ, stating that proof of an agency agreement with respect to a merchant is unrestricted; June 28, 2002, LawLex200200004173JBJ, holding that the existence of a commercial agent's contract, a consensual contract, can be proven by any written document as long as it indicates the capacity of the parties and is accepted by each of the co-contracting parties, such being the case when three proposals for a sub-agent's contract and various letters attest to the execution of such a contract, in addition to a statement of the commission rate on invoices and correspondence from the Fédération nationale des agents commerciaux. See also CA Versailles, 1 July 2010, LawLex201200000831JBJ, noting that proof of an agency agreement under the terms of the Law of 29 January 1993 is provided when an advertising agency produces a photocopy of a signed agency agreement bearing the principal's stamp.

Cass. com. 4 May 1970, LawLex202200008983JBJ.

Business Contracts

476. Existence of agency agreement

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476. Existence of agency agreement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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