A clause providing for a time bar (forclusion), a limitation period (prescription) or prior conciliation, stipulated in a contract, may be relied on against a third party who alleges a breach of that contract on the basis of tortious liability. The commercial chamber quashes the decision which had held those clauses unenforceable against the manager (gérant) of a client company, on the ground that they had not given any personal undertaking. The basis relied on is Article 1240 of the French Civil Code (Com., 17 December 2025, No. 24-20.154).
Key points
- A third party to a contract who alleges a contractual breach on the basis of tortious liability, Article 1240 of the French Civil Code, may be met with the conditions and limits of liability applicable between the contracting parties.
- The time bar, limitation and prior conciliation clauses of an engagement letter fall within those conditions and limits: a third party does not set them aside merely because they did not sign them.
- An executive who seeks compensation for personal damage caused by the fault of their company's service provider therefore remains exposed to the clauses of the contract concluded by the company.
- A claim for compensation for damage suffered personally by the executive is not a dispute relating to an undertaking between traders within the meaning of Article L. 721-3 of the French Commercial Code.
An executive acting against their company's service provider
The commercial chamber quashes the appeal decision: the clauses of the engagement letter signed by the client company are enforceable against its manager when they sue on tortious grounds. A company entrusted its bookkeeping to an accountancy firm under an engagement letter. The client company underwent a tax reassessment, which gave rise to a personal reassessment of its manager. The company and the manager brought proceedings against the accountancy firm before a tribunal judiciaire (first-instance civil court), alleging breaches of its obligations.
Before the lower court judges, the accountancy firm raised an objection to jurisdiction in favour of the commercial court. It also relied on three pleas of inadmissibility (fins de non-recevoir) drawn from clauses of the engagement letter: time bar, limitation period and prior attempt at conciliation. The decision under appeal (CA Aix en Provence, 8 June 2023, No. 22/15908) rejected the objection to jurisdiction and dismissed the three pleas of inadmissibility, on the ground that the manager had not given any personal undertaking.
On jurisdiction, the commercial chamber endorses the lower court judges (free translation): the manager's claim sought compensation for personal damage, and not a dispute relating to an undertaking between traders within the meaning of Article L. 721-3 of the French Commercial Code.
Having found that the dispute did not relate to an undertaking between traders, but concerned compensation for damage suffered personally by [the manager], resulting from a fault alleged against [the accountancy firm], the court of appeal rightly rejected the objection to jurisdiction raised by that company.
On the three clauses, the commercial chamber quashes the decision in all its provisions, on the basis of Article 1240 of the French Civil Code, and remits the case to the same court of appeal, differently composed. The lower court judges could not set aside the clauses of the engagement letter merely on the ground that the manager had not personally undertaken to comply with them.
It follows from this provision that a third party to a contract who relies, on the basis of tortious liability, on a contractual breach which has caused it damage may be met with the conditions and limits of liability which apply in the relations between the contracting parties.
Which contract clauses are enforceable against a third party?
A third party who bases their claim on the non-performance of a contract to which they are not a party takes that contract as it stands, with the conditions and limits of liability it organises. An executive, a shareholder or any other person outside the contract who alleges that a service provider has breached an undertaking given to someone else can no longer separate the fault from the framework surrounding it. Three clauses were at stake here: a time bar clause, a clause adjusting the limitation period and a clause requiring a prior attempt at conciliation.
The solution does not make these clauses automatically effective. Article 1240 of the French Civil Code, as the commercial chamber applies it, merely opens the possibility of relying on them against the third party. The judge must then check what each clause provides, its scope and its effect, before inferring a time bar, an expired limitation period or inadmissibility. A third party can therefore no longer refuse that debate merely because they did not sign the contract.
What the decision settles and what it leaves open
The decision settles the enforceability of the clauses against the third party; it does not hold that the manager's claim is extinguished. The quashing covers all the provisions of the decision under appeal. The court hearing the case on remittal will have to re-examine the three pleas of inadmissibility taking account of the rule laid down. Nothing in the decision under review indicates that one of these clauses will lead to the manager's claim being dismissed: their practical applicability remains entirely open.
The combination of the two answers deserves attention. On jurisdiction, the commercial chamber holds that the manager's claim concerns personal damage and not an undertaking between traders. On the clauses, it holds on the contrary that the contract concluded between the two companies frames that same claim. The third party remains a third party as regards the court seised, but bears the contractual framework from which they draw their argument.
Contract practices for service providers and their clients
A time bar, limitation or conciliation clause is only of real use if its wording covers claims based on the performance of the contract and if the party relying on it raises it before the judge. For a service provider, the engagement letter or the general terms and conditions should define precisely the scope of the claims covered and the arrangements for prior conciliation. The decision under review shows that these stipulations retain their usefulness against a claim brought from outside the contract.
For anyone contemplating a claim against another party's contracting partner, reading the contract relied on becomes a prerequisite. Basing the claim on tortious liability does not neutralise the clauses framing the service provider's liability. The useful documentation includes the signed contract, its general terms and conditions and the exchanges relating to their acceptance, since the debate will turn on the exact content of each clause.
Points to check before suing a service provider
- Obtain the contract relied on and its general terms and conditions, even where you are not a signatory, before bringing a claim based on a breach of that contract.
- Identify in that contract the time bar clauses, the clauses adjusting the limitation period and the clauses requiring a prior attempt at conciliation.
- For a service provider sued by a third party, check that the wording of these clauses does cover the claim made and raise them before the judge.
- Distinguish the question of the court having jurisdiction, which follows the personal nature of the claim, from that of the enforceable clauses, which follows the contract.
Frequently Asked Questions
Can an executive facing a personal tax reassessment sue their company's accountant?
Yes. An executive may seek compensation for damage suffered personally by relying, on the basis of tortious liability, on the service provider's breach of the contract concluded with their company. But the commercial chamber held, on 17 December 2025, that the clauses of that contract are enforceable against them. The executive may therefore be met with a time bar, limitation or prior conciliation clause that they never signed personally.
Does a prior conciliation clause bind someone who did not sign the contract?
A clause requiring a prior attempt at conciliation may be relied on against a person who, without being a party to the contract, alleges a breach of that contract by the service provider in order to obtain compensation. The commercial chamber adopted this solution on the basis of Article 1240 of the French Civil Code. The judge nonetheless retains the task of checking the content and scope of the clause before inferring any inadmissibility of the claim.
Can you escape a contract's liability limits by suing in tort?
No. A third party to a contract who relies, on the basis of tortious liability, on a contractual breach causing them damage may be met with the conditions and limits of liability applicable between the contracting parties. This rule, drawn from Article 1240 of the French Civil Code, was adopted by the commercial chamber on 17 December 2025. Choosing a tortious basis therefore does not allow the contractual framing of liability to be ignored.
Do a company and its manager suing the same service provider go before the same court?
Not necessarily. The manager's claim seeking compensation for damage suffered personally is not a dispute relating to an undertaking between traders within the meaning of Article L. 721-3 of the French Commercial Code: the jurisdiction of the commercial court was rejected on that ground. In the case decided on 17 December 2025, the decision under appeal notes that the dispute between the client company and the service provider had itself been referred to the commercial court.
When the Cour de cassation quashes a decision on enforceability of clauses, is the claim over?
No. The quashing pronounced on 17 December 2025 sets aside the appeal decision in all its provisions and remits the case to the same court of appeal, differently composed. The court hearing the case on remittal must re-examine the claims taking account of the rule laid down: the clauses of the contract are enforceable against the third party. It will still have to check whether each clause applies to the claim and what effects follow.