Business Contracts

When the agent contracts in his own name, despite having declared that he is acting on behalf of his principal, the agency contract is performed in an “imperfect” manner, without representation, i.e. it is valid between the principal and the agent, but produces no effects with regard to third parties, for whom the agent is the sole co-contracting party.
According to the case law, an agent who tran …

Improper performance (exécution imparfaite)

When the agent contracts in his own name, despite having declared that he is acting on behalf of his principal, the agency contract is performed in an “imperfect” manner, without representation, i.e. it is valid between the principal and the agent, but produces no effects with regard to third parties, for whom the agent is the sole co-contracting party.

According to the case law, an agent who transacts business in his own name with a third party becomes the latter's direct contractual debtor, except in the case of recourse against the principal , unless he or she establishes that the contracting third party could not believe in good faith that he was personally committing himself and that he knew or was in a position to suspect the existence of a principal . Thus, a shipper who transacts with a carrier without disclosing to the carrier that he is acting on behalf of the consignee from whom he has received a mandate to do so, becomes personally obligated to the carrier . Similarly, when the lease agreement has been signed solely by a real estate agency, without any mention of the name of the owner of the rented apartment, and the tenants only became aware of this name after production, on injunction during the proceedings, of the management agency agreement between the owner and the agency, the agency is liable for the landlord's obligations towards the tenants, without prejudice to recourse against its principal .

Cass. 3e civ, 17 October 1972, LawLex202300013735JBJ; Cass. 1re civ, 17 November 1993, LawLex202200009984JBJ.

CA Lyon, 3 September 2024, LawLex202400007573JBJ.

Cass. com, 31 March 1981, LawLex202300013736JBJ.

Cass. 1re civ, 17 November 1993, LawLex202200009984JBJ.

Business Contracts

498. Improper performance (exécution imparfaite)

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498. Improper performance (exécution imparfaite)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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