Business Contracts

A contract for services (known as a louage d'ouvrage and more commonly as a contrat d'entreprise)  is defined by Article 1710 of the Civil Code as “a contract by which one of the parties undertakes to do something for the other, in return for a price agreed between them”. This loose definition has given rise to difficulties of classification in relation to other types of contract, notably contract …

Contract for services (contrat d'entreprise)

A contract for services (known as a louage d'ouvrage and more commonly as a contrat d'entreprise)  is defined by Article 1710 of the Civil Code as “a contract by which one of the parties undertakes to do something for the other, in return for a price agreed between them”. This loose definition has given rise to difficulties of classification in relation to other types of contract, notably contracts of sale, which case law has attempted to overcome by identifying the characteristic elements of the contrat d'entreprise.

While under the terms of Article 1582 of the Civil Code, “sale is an agreement by which one party undertakes to provide a thing, and the other to pay for it”, it follows from the provisions of Article 1710 that one of the parties, the contractor, undertakes to do something for the other, the principal, in return for payment. The contract for services as therefore implies the performance of an obligation to do something, as opposed to an obligation to deliver a thing, which classically characterizes a contract of sale .

The Court of Cassation has therefore established the principle that an contract which relates not to goods whose characteristics are determined in advance by the manufacturer, but to specific work for the particular needs expressed by the client, constitutes a contract for services  and not a contract of sale . According to the courts, the characterization of specific work excludes the possibility of mass production . Thus, a service provided by an undertaking which consists in replacing several products with series-produced items which it manufactures without having to perform specific work in accordance with particular specifications making it impossible to substitute another equivalent product for the product ordered, and which therefore does not have a unique character, falls within the scope of a contract of sale . This “specific work” implies a certain degree of complexity in the work to be carried out, which translates into tailor-made production, incompatible with the concept of a contract of sale, which consists of the performance of an obligation to supply goods in return for payment of a price. Thus, a service consisting in the supply and installation of a thing, a complex transaction which meets a particular need, requires prior planning and is carried out in several phases without being limited to the simple delivery of thing, constitutes a contract for services and not a contract for sale . A contract for the implementation of a token-cutting station, which is not a standard machine, but a machine custom-built for use in the client's innovative project according to criteria expressly specified by the latter, is a contract for services . On the other hand, a contract by which an undertaking manufactures an fiber-optic cable intended for a telecommunications device for another undertaking constitutes a contract of sale, provided that both parties have determined, together and in advance, the terms and conditions of supply of said cable, and that the specifications given by the buyer represent only the minimum of information essential to the consideration of the demand, which simply refer to the characteristics of the supply and its use, without entailing any knowledge of how to satisfy them, or expressing a requirement implying any particular customization .

The courts sometimes apply the price criterion to classify a contract as a contract of sale, since in the case of a sale, the parties have to reach agreement on the item and the price for the contract to be validly formed, whereas prior agreement on the exact amount of remuneration is not an essential element of a contract for services . A party who orders a machine for the custom cutting of manufactured baguettes is bound to the other party by a contract of sale, and not a contract for services, regardless of the way in which the parties have classified their agreement, since the object of the accepted quotation is to order a machine in return for payment of a price, which is defined as a contract of sale, and given that the last page of the quote contains general terms and conditions of sale .

Similarly, a contract by which one party undertakes to supply a certain quantity of untreated water to another party in return for the payment of a sum of money at regular intervals is a contract of sale, insofar as the object of the contract is not the performance of work but the supply of a commodity .

In certain cases, the classification of an agreement involving an obligation to do and to give consisting in the “supply of materials” can be tricky. The Court of Cassation considers that such an agreement constitutes a contract of sale not a contract for services, when the “ subject matter ” element prevails over the “ mode of performance ” element , and vice versa. Where one does not prevail over the other, the Court of Cassation considers that the agreement can be characterized as a complex agreement comprising both a contract for works (louage d'ouvrage) and a sale of supplies .

Before the reform of contract law in 2016, former Article 1136 of the 1804 Civil Code distinguished between the obligation to give and the obligations to do and not do, referred to in former Article 1142, but this classification has since been abandoned.

Cass. com. July 4, 1989, LawLex200600002119JBJ; concerning an order for a distillation plant; Cass. 1re civ. 14 December 1999, LawLex202100006380JBJ, concerning the supply and installation of engines on a fishing boat; Cass. 3e civ. 20 April 2022, LawLex202200003797JBJ, for an order for floodlights.

Cass. com. 27 November 2001, LawLex202100006383JBJ.

Cass. 1re civ., 27 April 1976, LawLex202100006400JBJ, stating that the contract under which a person supplies both his work and movable objects intended to form part of the family interior decoration is considered to be a sale where the work constitutes an accessory. 

Cass. 3e civ. 16 March 1977, LawLex202100006459JBJ.

Cass. 3e civ. 11 July 2012, D. 2012, 2540, chron.: the agreement by which an undertaking supplies a reinforcement kit with a drawing manufactured by a company which is not its subcontractor, is a sales contract insofar as the undertaking is not entrusted with any specific work.

CA Versailles, 13 June 2024, LawLex202400004557JBJ.

CA Chambéry, 6 February 2024, LawLex202400001365JBJ.

CA Angers, 8 April 2022, LawLex202200004134JBJ.

CA Versailles, 7 September 2021, AJCA March 2019. See Cass. com. 3 January 1995, classifying a contract for the manufacture of cereal bars as a contract for services rather than a contract of sale, insofar as the cereal bars were produced from spheres supplied by the client, on equipment and according to a process defined and ordered by the client, with the result that these products were intended to meet the client's particular needs, and did not have characteristics determined in advance by the manufacturer.

Cass. com. 6 March 2001, LawLex202100006403JBJ. 

Cass. com. 28 November 2000, LawLex202200000806JBJ.

CA Lyon, 14 April 2022, LawLex202200002123JBJ. See along the same lines, Cass. com. 5 December 2018, LawLex201900002105JBJ.

Business Contracts

48. Contract for services (contrat d'entreprise)

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

48. Contract for services (contrat d'entreprise)

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