Business Contracts

An agency agreement is an intuitu personae contract par excellence, and in principle implies personal performance of the mission by the agent, except in the case of sub-agency agreements. Under article 1991 of the Civil Code: “The agent is bound to carry out the agency agreement for as long as he or she remains in that role, and is liable for any damages resulting from his or her failure to do so. …

Performance of mandated task

An agency agreement is an intuitu personae contract par excellence, and in principle implies personal performance of the mission by the agent, except in the case of sub-agency agreements. Under article 1991 of the Civil Code: “The agent is bound to carry out the agency agreement for as long as he or she remains in that role, and is liable for any damages resulting from his or her failure to do so. He is likewise bound to complete the work begun in the event of the death of the principal, if the situation is in jeopardy”. However, according to case law, the agent is bound not only by the obligations expressly provided for in the Civil Code for the agency agreement, but also by those which have given rise to particular stipulations in the contract, as well as all the obligations pertaining to the existence of contractual links . 

The agent must faithfully discharge the agency agreement, in keeping with the principal's trust and interests, and following the principal's instructions . Thus, an agent acting on behalf of the sellers of a business who, although aware that the essential guarantee to be provided to them concerns payment of the price, in fact only ensures payment of his own commission, is at fault towards them . Similarly, a lawyer who has been appointed to act as a civil party in criminal proceedings and who, although he knew that his client's essential aim was to obtain the defendant's criminal conviction, took the initiative of negotiating with the defendant without the latter's instructions, negotiated with opposing counsel and concluded a settlement which did not satisfy his client's interests, with the dual aim of removing him from the proceedings and obtaining remuneration, transgressed the agency agreement he had taken on, thereby breaching professional rules and discretion .

In addition to the loyalty  and trustworthiness expected of the agent in the performance of his/her duties, he/she must also act with diligence, which, according to the Court of Appeal of Saint-Denis de la Réunion, implies that he/she must always be proactive and consistent, even when obstacles interfere with the performance of his/her duties, and act as quickly as possible, particularly in the event that a delay is likely to be prejudicial to the principal . The agent must also perform his duties in accordance with the rules of the profession, the duty of care covering the obligation to demonstrate a certain level of technical expertise . A customs broker must therefore take the necessary steps in good time to carry out his mandate . Similarly, since a judicial commissioner (commissaire de justice) is not an agent without initiative, he must, in the absence of formal instructions to the contrary from his client as to the date of the order for seizure and sale of goods (vente sur saisie exécution), set it in the manner most conducive to the client's interests, and move or maintain it in the light of those same interests . 

Generally speaking, the agent must carry out the assignment entrusted, in due time and at the appointed place, acting as a diligent professional (bon professionnel)  or as a prudent professional (professionnel avisé)  , failing which he or she may be held liable.  The extent of this obligation of prudence and diligence is assessed in concreto, and varies according to the circumstances of the case and the personal knowledge of the principal . Thus, the customs broker, in his capacity as agent, must ensure that the declaration he makes complies with current customs regulations . The travel agent, when responsible for providing the traveller with a travel document, is under an obligation to ensure the validity of the document thus issued .  Similarly, professional intermediaries, such as a notaries   or real estate agents ,who assist in the drafting of deeds after having been mandated by one of the parties, is obliged to ensure that all the conditions necessary for the legal effectiveness of the agreement are met, even with regard to the other party . Consequently, a court of appeal cannot dismiss the fault of a real estate agent in the performance of his agency agreement, without investigating whether he had carried out the verifications necessary to ensure the legal effectiveness of the agreement - in particular, consulting the seller's title deeds, which would have revealed the existence of the easement in question - and whether the easement  was such as to affect the use normally expected, or announced, of the acquisition . 

The legal and practical effectiveness of the agency agreement depends on the nature of the contract. Depending on whether the agreement is indicative or imperative, the agent has varying degrees of leeway in carrying out his mission . 

Thus, a principal who, after having given an agency agreement to a company to carry out, on his own initiative and on his behalf, transactions involving the subscription, purchase and sale of stocks and shares, instructed the company to sell certain securities, is not entitled to claim damages from the company following the sale it carried out in execution of these instructions, since the sale of the securities was the result of a handwritten order, that the clear and precise terms of this letter did not allow the agent to evade the execution of the instructions received, or even to discuss them with his principal, the urgency being underlined by the use, on two occasions, of the adverbial phrase “as soon as possible”, and that in stock market matters, any delay in the execution of regular orders given by an agent to his principal can have serious financial consequences . Similarly, a customer who has given the bank an agency agreement to manage a stock portfolio, and has authorized the bank to expose the portfolio to the vagaries of the stock market, is not entitled to accuse the bank of improper performance or abuse of the agency agreement .  Conversely, a judicial commissioner who sells a stock of equipment under judicial authorization may not sell below a minimum price per item, since the authorized sale, being voluntary, did not deprive him either of his status as the seller's agent or of the possibility of attaching a reserve price to the sale, so that he is liable for the difference between the expected price and the price paid to the seller .

CA Chambéry, 13 June 2017, LawLex202300007506JBJ.

Cass. com. 5 October 1999, LawLex202300012565JBJ.

CA Versailles, 19 March 2020, LawLex202300007573JBJ; CASaint-Denis de la Réunion, 19 August 2022, LawLex202300007620JBJ.

Cass. com. 18 December 2012, LawLex202200010005JBJ

Cass. 1re civ, 31 May 1978, LawLex202300012341JBJ

CA Caen, 8 October 2024, LawLex202400007654JBJ.

CA Riom, 9 June 1920, LawLex202400008090JBJ; CA Aix-en-Provence, 28 January 2021, LawLex202300007724JBJ.

Cass. 1re civ, 25 November 1997, LawLex202300012378JBJ; CA Rennes, 6 April 2017, LawLex202400008091JBJ; CA Douai, 13 June 2024, LawLex202400004780JBJ.

Cass. 1re civ, 25 November 1997, LawLex202300012378JBJ.

CA Paris, 2 May 2024, LawLex202400008081JBJ.

Cass. 1re civ., 19 March 1996, LawLex202300012374JBJ.

Cass. com, 27 June 1977, LawLex202300012537JBJ.

Cass. com. 23 October 1990, LawLex202300012538JBJ. 

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

Cass. 1re civ, 11 July 1983, LawLex202300012427JBJ.

CA Toulouse, 2 July 2024, LawLex202400008082JBJ.

CA Saint-Denis de la Réunion, 19 August 2022, LawLex202300007620JBJ; CA Aix-en-Provence, 5 November 2015, LawLex202300007513JBJ, holding that in accordance with the provisions of Article 1992 of the Civil Code, the agent, who is expected to exercise diligence, is required to act promptly and expeditiously in order to execute his agency agreement in the best interests of the principal.

Cass. com., 4 October 1988, LawLex202300007635JBJ.

Cass. 1re civ, 9 July 1985, LawLex202200008954JBJ. See also. CA Douai, 19 September 2019, LawLex202300007575JBJ, holding that as an agent of a creditor for the recovery of his debts, the bailiff, when entrusted with the enforcement of a judgment, is bound by an obligation of prudence and diligence which implies acting in the best interests of his principal, seeking all information necessary for the proper performance of his agency agreement and carrying out all appropriate verifications [Editor's note: since the Ordinance of 1 June 2016 on the status of judicial commissioner came into force on 1 July 2022, the status of court bailiff has been replaced by that of judicial commissioner].

Business Contracts

479. Performance of mandated task

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

479. Performance of mandated task

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise