Business Contracts

Article 1598 of the Civil Code, which appears in Book III, Title VI, Chapter III of the Civil Code on “Things that can be sold”, specifies that anything that is in commerce can be sold when specific laws have not prohibited its alienation. These provisions must be read in conjunction with articles 6 and 1162 of the Civil Code, which stipulate that agreements must not contravene public policy or mo …

Unlawful thing

Article 1598 of the Civil Code, which appears in Book III, Title VI, Chapter III of the Civil Code on “Things that can be sold”, specifies that anything that is in commerce can be sold when specific laws have not prohibited its alienation. These provisions must be read in conjunction with articles 6 and 1162 of the Civil Code, which stipulate that agreements must not contravene public policy or morality, and with article 1128 of the same code, which requires that all agreements must be lawful and certain, and must not contravene the legislation, public policy, morality or, more generally, be unlawful .

Which things are unlawful and cannot be the subject of a contract of sale? 

The law can define a thing as unlawful, and when the law is silent, it is up to the trial courts to define the notion of a “non-tradeable” (hors commerce) thing. 

The Criminal Code specifically prohibits the sale of narcotics, unauthorized weapons and images or videos containing child pornography . It also prohibits the sale of human organs and embryos , in line with Article 16-1 of the Civil Code, which stipulates that the human body, its elements and products cannot be the subject of property rights. In addition, Article L. 716-9 of the Intellectual Property Code imposes a four-year prison sentence and a EUR 400,000 fine on anyone selling, supplying, offering for sale or renting goods presented under an infringing trademark. Since the sale of counterfeit goods is prohibited, there is no need to consider the existence of fraud or error to the buyer's detriment . For example, the transfer of an “unsealing” computer program, which enables the reproduction of software equipped with a protection system against duplication, constitutes a sale of an unlawful item . Conversely, in international contracts for the sale of goods, the seller is exempt from the obligation to deliver goods unencumbered by intellectual property rights if, at the time of conclusion of the agreement, the buyer could not have been unaware that they contained an infringing element, particularly in view of his or her capacity as a professional (i.e. seller or supplier) .

Where the law is silent, it is up to the courts to determine whether or not something is to be considered tradeable. Thus, although the law does not expressly sanction the failure to declare a customer file to the CNIL by invalidating it, the sale of an undeclared file that is not considered to be tradeable must be invalidated in view of its unlawful object . Similarly, the transfer of a private clientele (clientèle civile), which is not regulated by the legislator, has long been considered by the courts as unlawful. Sometimes disguised in the form of a provision for the introduction of a clientele, the purpose of the stipulation was to buy back a share in the clientele, thereby infringing on the patient's free choice of doctor, and was declared null and void as contrary to public policy, since the clients were non-transferable and outside the sphere of trade . In order to respect the patient's absolute freedom of choice of doctor, a medical clientele, attached exclusively and always precariously to the person of the doctor, was not commercial and could not be the subject of a contract . It has even been held that the invalidity of an agreement to transfer part of a clientele extended to the loan agreement taken out to finance this unlawful transaction . However, the consideration received for helping to build up or develop a clientele, in the context of the sale of an architectural firm, by making available a list of the existing clientele, did not amount to an unlawful transfer of clientele . In addition, the contract which obliged a doctor who presented his patients to a colleague to do everything in his power to ensure that his patients transferred their confidence to his co-contractor was not unlawful, since they retained their freedom of choice .The Court of Cassation has since reversed its position, and now considers that the transfer of a private clientele, in the context of the constitution or transfer of a professional practice, is no longer unlawful, provided that the client's or patient's freedom of choice is preserved . The transfer of a private practice clientele is no longer unlawful in principle, so that it is irrelevant whether the purpose of the agreement is the transfer of the customer base or the referral of the customer base . On the other hand, the transfer of a medical clientele becomes unlawful once again when patients' freedom of choice, in view of a pathology requiring regular dialysis treatment with equipment, cannot be preserved . Similarly, a clause stipulating that the transferee of shares in a notarial partnership (SCP) is to be paid, for a period of ten years, the sums received by the transferor, the proprietor of another notarial office, from his former clients, is null and void, since it entails the transfer of the clientele that belonged in part to the transferor, depriving him of any remuneration for the corresponding business and leading him either to refuse his services, or to persuade his clients to choose another notary, in violation of the principle of freedom of choice of clientele .

CORNU, Vocabulaire juridique, Association Henri Capitant, 13e éd., 2020. (legal terminology).

Criminal Code, Art. 222-37, 222-52 and 227-23.

Cass. 1re civ. 9 May 1961, LawLex202200000043JBJ.

Cass. 1re ch. civ. 7 June 1995, LawLex202200001064JBJ.

Cass. 1re civ. 7 December 2000, LawLex202200000044JBJ.

Cass. com, 24 September 2003, LawLex202200000045JBJ.

Cass. 1re ch. civ. 30 June 2004, LawLex202200000046JBJ.

Cass. 1re civ. 14 November 2012, LawLex20220000000420JBJ.

Cass. com. 24 September 2003, LawLex202200000051JBJ.

Cass. com. 22 May 1991, LawLex200200001807JBJ.

Cass. 1re civ., 19 March 2002, LawLex202200000052JBJ.

Cass. com., 25 June 2013, LawLex20220000000410JBJ.

Cass. 1re civ, 27 November 1984, LawLex202200000041JB.

Cass. 1re civ. 7 February 1990, LawLex202200000412JBJ; 3 July 1996, LawLex202200001008JB.

Cass. 1re civ, 1 October 1996, LawLex202200000042JBJ.

Business Contracts

8. Unlawful thing

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8. Unlawful thing

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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