Article 1171 of the French Civil Code, which deems unwritten any clause creating a significant imbalance (déséquilibre significatif) in a standard-form contract (contrat d'adhésion), does not apply to a contract concluded by a person carrying on production, distribution or service activities. A business challenging an unfair term between professionals must therefore rely on Article L. 442-1 of the French Commercial Code, unless another provision excludes that text.
Key takeaways
- Article 1171 of the French Civil Code does not sanction clauses in contracts concluded by a person carrying on production, distribution or service activities.
- Those contracts fall under Article L. 442-1 of the French Commercial Code, a special provision with its own conditions and its own sanction.
- Marketing services is enough to bring a company's commercial negotiations and commercial contracts within the scope of Article L. 442-1 of the French Commercial Code.
- Article 1171 of the French Civil Code recovers its scope where another provision excludes the application of Article L. 442-1 of the French Commercial Code to the contract at issue.
- A business challenging a contractual imbalance first chooses its legal basis by reference to the activity of the person who concluded the contract.
A transport contract terminated after amendment talks failed
The commercial chamber dismisses the appeal to the Cour de cassation (France's highest civil court): Article 1171 of the French Civil Code does not apply to contracts concluded by a person carrying on production, distribution or service activities (Com., 13 May 2026, No. 24-17.137). The contract in dispute fell within the scope of Article L. 442-1 of the French Commercial Code, which deprived the claimant of any basis in the general law of contract.
A company marketing intercity coach transport services, the performance of which it subcontracts to carriers, concluded a three-year contract in August 2019 with a carrier governed by Belgian law, to take effect in October 2019. In April 2020, it notified a draft amendment, which opened a two-month negotiation period provided for by the contract. In June 2020, finding that the negotiations had failed, it terminated the contract on three months' notice. The carrier brought proceedings against it seeking compensation for its damage.
The carrier complained that its contracting partner had imposed on it a standard-form contract containing clauses creating a significant imbalance to its detriment. The decision under appeal (CA Paris, 24 April 2024, No. 22/13162) rejected the classification as a standard-form contract, since the carrier had been able to negotiate certain clauses. The appeal to the Cour de cassation argued that a set of non-negotiable clauses is enough to establish that classification, even where the rest of the contract is negotiated.
The commercial chamber does not decide that classification debate. It substitutes, for the reasoning criticised, a ground of pure law suggested by the defence, under the conditions laid down in Article 620, first paragraph, of the French Code of Civil Procedure. That ground concerns the very scope of Article 1171 of the French Civil Code, read in the light of the parliamentary preparatory works (travaux parlementaires) for Law No. 2018-287 of 20 April 2018 (free translation):
Article 1171 of the French Civil Code, interpreted in the light of those preparatory works, therefore does not apply to contracts concluded by a person carrying on production, distribution or service activities, except where the application of Article L. 442-1 of the French Commercial Code to those contracts is excluded by another provision.
The decision under appeal found that the company markets transport services. The commercial chamber infers from this that the commercial negotiations conducted by that company and the commercial contracts it enters into fall within the scope of Article L. 442-1 of the French Commercial Code. Article 1171 of the French Civil Code therefore did not apply to the dispute, and the decision is legally justified. The other grounds did not warrant a specially reasoned decision.
Unfair terms between professionals: which provision applies?
A business challenging an imbalanced clause in a commercial contract must argue under the French Commercial Code, not under the general law of contract. The choice of legal basis is no litigator's refinement: it determines the very admissibility of the challenge. A claim built on Article 1171 of the French Civil Code alone runs up against the scope of that text where the contract was concluded by a person carrying on production, distribution or service activities.
The debate on the negotiability of clauses then loses its purpose. Whether the general terms and conditions were withdrawn from negotiation, or whether a block of clauses was imposed, no longer matters once Article 1171 of the French Civil Code is out of play. That text lays down, in the wording recalled by the decision, a sanction of its own:
Under Article 1171 of the French Civil Code, in a standard-form contract, any non-negotiable clause determined in advance by one of the parties which creates a significant imbalance between the rights and obligations of the parties to the contract is deemed unwritten.
Article L. 442-1, I, 2°, of the French Commercial Code is the special provision applicable to those relationships. Its conditions of application and the compensation regime it opens up follow their own logic, which the decision under discussion did not have to set out. A business challenging an unfair term between professionals must therefore establish the elements required by that provision, and not those of the standard-form contract.
The boundary between general and special contract law
The decision allocates the respective scope of three sets of rules against unfair terms, relying on the intention of the legislature. According to the commercial chamber, the parliamentary preparatory works leading to Law No. 2018-287 of 20 April 2018 show that Article 1171 of the French Civil Code sanctions unfair terms in contracts falling neither under Article L. 442-6, I, 2°, of the French Commercial Code, whose provisions now appear in substance in Article L. 442-1, I, 2°, nor under Article L. 212-1 of the French Consumer Code. The general law plays a residual role.
One reservation remains, and it is express: Article 1171 of the French Civil Code becomes applicable again if another provision excludes the application of Article L. 442-1 of the French Commercial Code to the contract concerned. The decision does not list those exclusions. The question raised by the appeal to the Cour de cassation also remains open, namely whether a set of non-negotiable clauses is enough to classify a contract as a standard-form contract where other provisions were negotiated: the commercial chamber did not have to answer it.
Which steps before challenging an imbalanced clause?
The legal basis is chosen first by reference to the activity of the person who concluded the contract. The test adopted by the decision is easy to apply: marketing services is enough to bring a company's commercial contracts within the scope of Article L. 442-1 of the French Commercial Code. That check is therefore carried out before any discussion of the drafting of the disputed clauses.
- Identify the contracting partner's activity: production, distribution or services steer the discussion towards the French Commercial Code.
- Build the evidence required by the special provision relied on, and not that of the standard-form contract.
- Document, from the negotiation stage onwards, requests for amendment, refusals given and concessions obtained.
The interaction of the various legal bases also deserves to be anticipated. Before the lower court judges, according to the decision under appeal, the carrier had relied in the alternative on the nullity of the termination clause (clause de résiliation) and on the sudden termination of an established commercial relationship (rupture brutale de la relation commerciale établie). Litigation over an imbalanced clause is rarely fought on a single front: the validity of the provision, its performance and the termination of the relationship are distinct questions, each argued with its own evidence.
The checks to make before challenging a commercial clause
Three points follow from the decision. The contracting partner's activity is checked before the legal basis is chosen, because it dictates the exclusion of Article 1171 of the French Civil Code. The demonstration of the imbalance is then built according to the requirements of Article L. 442-1 of the French Commercial Code, the special provision applicable to those contracts. Finally, the existence of a provision excluding that text from the contract at issue deserves examination, since it reopens the scope of the general law. As the case law stands at 13 May 2026, the question of classification as a standard-form contract where clauses have been partly negotiated remains unanswered.
Frequently Asked Questions
My supplier imposed its standard terms: can I rely on Article 1171 of the French Civil Code?
No, not if the contract was concluded by a person carrying on production, distribution or service activities. On 13 May 2026 the commercial chamber held that Article 1171 of the French Civil Code does not apply to such contracts, unless another provision excludes Article L. 442-1 of the French Commercial Code. A challenge to an imbalanced clause must then be brought under the Commercial Code.
Does negotiating a few clauses prevent a contract from being a standard-form contract?
The question remains open. The court of appeal rejected that classification because the carrier had been able to negotiate certain clauses; the appeal argued that a set of non-negotiable clauses is enough, even where the rest of the contract is negotiated. The commercial chamber did not decide the point: it dismissed the appeal on another ground, namely that Article 1171 of the French Civil Code did not apply to the contract at issue.
Can a services company rely on general civil law rather than on the French Commercial Code?
No, save for the exception expressly reserved by the decision of 13 May 2026. Once a company markets services, its commercial negotiations and commercial contracts fall within the scope of Article L. 442-1 of the French Commercial Code, which excludes Article 1171 of the French Civil Code. General contract law becomes available again only if another provision excludes Article L. 442-1 from the contract concerned.
How can a business prove that a clause creates an imbalance to its detriment?
Evidence is built from the written record of the negotiation. Successive drafts, requests for amendment, refusals given and concessions accepted show the real room for discussion. The analysis then turns to the reciprocal rights: termination rights, liability caps, allocation of risk, investment obligations. In principle, an imbalance is assessed in the light of what each party derives from the contract, which requires accounting evidence on the volumes and margins at stake.
What should a business do when a partner offers a take-it-or-leave-it amendment?
The answer should be put in writing, point by point. Replying by email to each proposed change, making costed counter-proposals and keeping the exchanges makes it possible to show later how each party behaved. It is also useful to reread the provisions governing failure of the discussion, in particular those opening a right of termination and setting a notice period. In principle, a party refusing an amendment remains bound by the contract in force until its term or its regular termination.