A commercial agent may validly settle their termination indemnity without knowing, at the time of signature, the turnover used as the reference. The commercial chamber so held on 13 May 2026. Public policy prohibits waiving protective rules in advance, but permits waiving their effects once acquired. No principle requires the parties to know precisely the sums at stake before signing.
Key points
- Waiver in advance of the public policy rules protecting the commercial agent is prohibited; waiver of the effects of those rules already acquired is lawful.
- A settlement agreement discharging the compensatory indemnity (indemnité compensatrice) for termination of the mandate remains valid even if the agent, on signing, does not know the turnover for the final year.
- The parties to a settlement agreement are not required to know in advance the exact amount of the sums that may be paid to them, including in a field governed by public policy.
- A refusal to disclose figures may still be argued from the angle of deceit, provided that the argument is expressly put to the judges examining the dispute.
A settlement agreement signed without knowing the turnover
The commercial chamber dismisses the appeal: a commercial agent who settles their termination indemnity does not have to know in advance the amount of the sums at stake. The decision commented on (Com., 13 May 2026, No. 24-20.159) concerns a settlement agreement (protocole transactionnel) signed on 10 February 2020. A company carrying on the business of commercial agent and its principal were bound by an oral commercial agency contract. The settlement agreement brought that contract to an end and fixed a settlement indemnity.
According to the decision under appeal (CA Montpellier, 23 July 2024, No. 22/05040), the settlement agreement specified that this indemnity covered the compensatory indemnity provided for in Article L. 134-12 of the French Commercial Code. In July 2021, the commercial agent company brought an action against the principal seeking annulment of the settlement agreement for duress. It also claimed commission still owed in respect of transactions concluded up to 31 December 2019, together with an additional termination indemnity. Placed in compulsory liquidation (liquidation judiciaire) in 2024, it brought the appeal to the Cour de cassation (France's highest civil court) together with its liquidator.
Before the Cour de cassation, the agent argued that, in matters of public policy, the parties may settle only rights already acquired whose value they know. It criticised the principal for not having disclosed the turnover for 2019, on which the amount of its indemnity depended. The commercial chamber rejects that reasoning in two propositions (free translation).
while it is prohibited to waive, in advance, the protective rules laid down by a public policy statute, it is by contrast permitted to waive the acquired effects of such rules
No principle requires that the parties to a settlement agreement, even in a field governed by a public policy statute, know precisely in advance the sums that may be paid to them.
On the second aspect of the dispute, the Cour de cassation holds that the court of appeal was not required to carry out an enquiry that had not been requested of it. The complaint based on the refusal to disclose the turnover data was therefore not assessed on the merits. The other complaints did not warrant a specially reasoned decision, as they were not such as to lead to quashing.
Can a commercial agent's termination indemnity be settled?
An amicable agreement may discharge a commercial agent's termination indemnity, provided that it relates to a right that has already arisen from the ending of the contract. The dividing line lies in time. Before the contract ends, the agent cannot give up in advance the statutory protection attached to termination. Afterwards, the indemnity becomes an acquired right of which they may dispose, including by accepting an amount lower than a court might have awarded.
The amount does not have to be calculated before signature. An agent who accepts a lump sum without having the turnover data cannot then rely on that ignorance alone to obtain annulment of the agreement. The principal, for its part, does not have to establish that the agent knew the exact calculation in order to rely effectively on the settlement agreement concluded.
The decision does not rule on the extent of the information owed by the principal. It separates two questions: what the principal must disclose, on the one hand, and the effect of a failure to provide information on the validity of the settlement agreement, on the other. To bring down a settlement agreement, a defect in consent must in principle be demonstrated: an induced mistake, deceit or duress.
What the decision confirms and what remains open to debate
The decision confirms the distinction between waiver in advance and waiver of acquired effects, and leaves open the debate on deceit by concealment. The commercial chamber relies on a long-standing solution, cited in the decision (Civ. 1re, 17 March 1998, No. 96-13.972), according to which waiver of the acquired effects of a public policy statute is permitted. Its contribution lies in the application of that solution to settlement agreements ending a commercial agency mandate. The dismissal of the first complaint rests on a refusal of principle: public policy does not make the validity of the settlement agreement conditional upon prior knowledge of the amounts.
What remains open concerns deceit by concealment (réticence dolosive). The Cour de cassation does not hold that a refusal to disclose the figures would be immaterial: it notes that the corresponding enquiry had not been requested of the court of appeal. A litigant who expressly puts that basis to the lower courts therefore retains room for argument, as the case law stands at 13 May 2026.
According to the decision under appeal, the judges had rejected any defect in consent in the light of factual evidence, including an email predating the signature confirming the agent's agreement to the overall amount. The court of appeal had also held the settlement agreement to have been performed in full, despite a partial payment made late.
Securing a settlement agreement with a commercial agent
The security of an end-of-mandate settlement agreement rests on the precision of its subject matter and on the traceability of information requests. On the principal's side, the interest lies in describing what the settlement indemnity covers: the compensatory indemnity for termination of the mandate, the commission owed, the period concerned. A clause identifying the rights discharged reduces later disputes about the scope of the waiver. Compliance with the agreed payment schedule retains its full importance, the decision under appeal showing that the fate of a termination clause (clause résolutoire) is discussed case by case.
On the commercial agent's side, three habits emerge from this dispute. Request in writing the figures needed for the calculation before signing. Keep a record of any refusal or silence, which may support proof of deceit. Set out expressly, from the first instance onwards, each ground of annulment relied on: a judge is not required to carry out an enquiry that has not been requested of them.
Checks to carry out before signing
- Place the waiver after the ending of the contract: only effects already acquired may be given up.
- Describe in the settlement agreement the rights discharged, the period covered and the payment schedule.
- Request in writing, before signature, the turnover data needed to calculate the indemnity, then file the reply or the absence of reply.
- Put each ground of annulment expressly to the first-instance judges, without relying on an enquiry being made of the court's own motion.
Frequently Asked Questions
Is a commercial agent's compensatory indemnity untouchable because it is a matter of public policy?
Public policy does not bar every waiver: it prohibits waiver in advance, before the right has arisen. Once the agency contract has ended, the indemnity is an acquired right, which the agent may dispose of in a settlement agreement. By contrast, a clause of the agency contract setting that right aside from the outset would be deprived of effect. The decision of 13 May 2026 applies that distinction to end-of-mandate settlement agreements.
Must the principal disclose turnover figures before having a settlement agreement signed?
The decision of 13 May 2026 does not make prior quantification a condition of validity of the settlement agreement. The commercial chamber holds that no principle requires the parties to know in advance the sums that may be paid to them, even in a field governed by public policy. The appeal invoked a duty to provide information drawn from Article R. 134-3 of the French Commercial Code, but the Cour de cassation did not decide that point.
Can a refusal to disclose figures lead to annulment of the settlement agreement for deceit?
Deceit by concealment remains an available basis, but it must be expressly put to the judges who determine the facts. In the case decided on 13 May 2026, the Cour de cassation noted that the court of appeal was not required to carry out an enquiry that had not been requested of it. The argument was therefore not assessed on the merits, and the settlement agreement withstood the challenge.
What precautions should be taken before signing an amicable agreement ending a commercial relationship?
Quantifying your own claim before any signature is the first precaution. It is also useful to request the necessary accounting information in writing and to keep both the reply and any refusal. The settlement agreement benefits from describing precisely the rights discharged, the period covered and the payment schedule. In principle, a validly concluded settlement agreement brings the dispute to an end: later regret about the amount is not enough to undo it.
Can a settlement agreement be challenged because the amount obtained looks too low?
An imbalance in the amount is not, in principle, enough to annul a settlement agreement. A defect in consent must be established: induced mistake, deceit or established duress. Whoever alleges such a defect bears the burden of proof, which is built from documents contemporaneous with the negotiation, such as quantified requests, refusals given and exchanges about accounting data. Without such material, a challenge rarely succeeds.