The law ratifying Ordinance No. 2016-131 of February 10, 2016 reforming contract law, the general regime and proof of obligations was presented to the Council of Ministers on July 6. The date of entry into force of the reform, as initially provided for by the ordinance, has not been modified and therefore remains October 1, 2016.
All contracts concluded after October 1, 2016 will be subject to the new law, and those concluded before, remain subject to the old law. However, the “three interrogation actions” provided for by the reform, namely the questioning (i) of a beneficiary of a preference pact on the existence of it and on his intention to avail himself of it; (ii) of a representative on the powers of the one who calls himself his conventional representative, finally (iii) of a holder of an action for nullity on his intentions will be applicable immediately to contracts in progress, except in the case where an action legal proceedings have already been initiated.
This large-scale reform involves various uncertainties interspersed among notable developments (such as contractual unforeseeability, for example, allowing one party to request a renegotiation of the contract from the other in the event of a change in unforeseeable circumstances during the conclusion of the contract) or the establishment of jurisprudential solutions (such as the regime of negotiations, the general duty of information, the unilateral promise and the pact of preference, etc.).
A novelty particularly attracts attention in the world of business contracts: the reform, in favor of “contractual solidarity” is also intended “to preserve the interests of the weaker party” (according to the report made to the President of the Republic), and in this way, the notion of “significant imbalance” is thus enshrined by the new article 1171 of the Civil Code.
In any “adhesion contract”, any clause creating a significant imbalance between the rights and obligations of the parties will now be deemed “unwritten”.
The parallel with the regime of “unfair terms” resulting from the Consumer Code is quickly made but now, in any contract subject to the Civil Code, that is to say all business contracts, the judge will be able to examine any significant imbalance independently of the quality of the parties (and no longer only, as between a professional and a consumer or a non-professional).
The contribution is notable and it is a safe bet that other reforms will follow along the path of “contractual solidarity”. The contract which was the law between the parties sees its binding force reduced and the judge is granted prerogatives previously reserved for clearly consumerist relationships. The first questions are already agitating the litigants…
What is a membership contract? Is it only a matter, as provided for in the new article 1110 of the Civil Code, of contracts whose general conditions stricto sensu are exempt from negotiation or is it a contract, more generally, whose main stipulations are imposed by one co-contractor to the other?
What legal regime should be applied when a party simultaneously invokes article 1171 of the Civil Code and article L-442-6 I 2° of the Commercial Code? The latter text punishes a restrictive practice consisting of the submission or attempted submission of a commercial partner to obligations creating “a significant imbalance” between the rights and obligations of the parties.
The new article 1171 of the Civil Code sanctions the significant imbalance by the “unwritten” nature of the disputed clause while article L. 442-6, I, 2° of the Commercial Code only provides that the author of the imbalance assumes responsibility.
Finally, from a procedural point of view and this is not a textbook case, the invocation, even subsidiary or superfluous, of the text resulting from the Commercial Code will refer the examination of a contentious file not to the civil courts. but necessarily before the specialized commercial courts referred to in article D. 442-3 of the Commercial Code and, on appeal, before the Paris Court of Appeal alone.
In the end, while we must welcome the extent of the reform, a certain complexity is to be feared on certain subjects, which certainly does not contribute to “the accessibility and intelligibility of the law” (objective with constitutional value) , or even “the attractiveness of French law.