What is the purpose of a contract lawyer?

A lawyer specialized in contract law will be able to advise you and draft a contract that will protect your interests in the long term.

Contracts are omnipresent in the daily lives of individuals or companies. Numerous legal rules govern the formation of contracts, which are sometimes difficult for non-lawyers to understand.

The formation of contracts is the subject of articles 1101 and following of the Civil Code, resulting from the reform introduced by ordinance No. 2016-131 of 10 February 2016 and Law No. 2018-287 of 20 April 2018 ratifying the ordinance in question and making amendments to certain texts, in particular on obligations and contracts.

Contract law: a complex subject

Why use FELLOUS AVOCATS when it comes to contract law?

The contractual control of FELLOUS AVOCATS will allow you personalized support in the drafting of your contracts. The reform that took place in 2016 is the reason why the intervention of a specialist in contract law is required in order to understand the challenges of the contract but also to limit its risks.

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An explanation of the guiding principles in contract law: the example of contractual freedom

A number of guiding principles exist in contract law, the best known is that of contractual freedom provided for in article 1102 of the Civil Code, which states that” Everyone is free to contract or not to contract, to choose their counterparty and to determine the content and form of the contract within the limits established by law. Contractual freedom does not allow derogations from rules that affect public order. ”

The ins and outs of this guiding principle should be known to our customers. The Constitutional Council recognizes contractual freedom through article 4 of the 1789 Declaration (Const. Const. Dec. 19, 2000, No. 2000-437). Consequently, while it is open to the legislator to impose limitations on contractual freedom linked to constitutional requirements or justified by the general interest, this is provided that there are no disproportionate infringements in relation to the objective pursued.

For example, by requiring that all contracts concluded between a supplier operating a commercial distribution network and the operator of a retail business, and whose common aim is to operate this business, have a common deadline, the legislator pursued a general interest objective aimed at ensuring a better balance of the contractual relationship between the operator of a business and the distribution network to which he is affiliated (Const. August 5, 2015, DC no. 2015-715).

On the other hand, while the legislator may provide that a occupational or interprofessional agreement recommend that a pension fund responsible for providing supplementary health protection for employees of companies falling within the scope of the agreement be recommended by a professional or interprofessional agreement, it cannot interfere with contractual freedom in such a way that the company is linked to a contracting party already designated by a contract already designated by a contract negotiated at the branch level and with a completely predefined content (Cons. const. 13 June 2013, DC no. 2013-2014, DC no. 672).

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Better control of the limits to contractual freedom

In addition, the firm is responsible for informing its clients about the possible limits to this contractual freedom, the ways to derogate from it while remaining within the legal domain.

In particular, the freedom to contract is limited in insurance law by the mechanism of compulsory insurance (damage to third parties caused by a motor vehicle: c. ass. art. L. 211-1; rental risk insurance: L. 6 July 1989, art. 7; liability of health professionals working on a voluntary basis, liability of professionals working on a voluntary basis, liability of manufacturers, liability of manufacturers, liability of manufacturers, liability of construction workers, etc.), and that of compulsory guarantee (compulsory guarantee in insurance contracts), and that of compulsory guarantee (compulsory guarantee in insurance contracts). covering the fire risk: c. ass. art. L. 122-7).

The refusal to sell a product or service to a consumer is, unless there is a legitimate reason, a 5th class violation (c. cons. art. L. 121-11). On the other hand, the refusal of sales between professionals is authorized. In terms of quantitative selective distribution, not only does the supplier (head of the distribution network) not have to justify its choice to limit the number of distributors, but the requirement of good faith does not require, on its part, the determination and implementation of a selection process based on objective and non-discriminatory criteria (Com. March 27, 2019, no. 17-22083).

The freedom to choose a contracting party is, for example, limited by pre-emption rights, which require the owner of a property who wishes to sell it to offer its sale in priority to certain persons (urban right of preemption; right of preemption of the tenant; right of preemption of the undivided owner). Above all, the refusal to contract based on a discriminatory ground referred to in article 225-1 of the Criminal Code constitutes an offence.

The freedom to choose the form of the contract is limited by the formal rules required under penalty of nullity: notarial act (mortgage, marriage contract, donation, sale of buildings to be built); handwritten information (bond); writing (pledge, trust);

The freedom to determine the content of the contract is radically limited by the enactment of a standard contract, i.e. a contract whose clauses are predetermined by the regulatory power upon delegation of the law (for example, standard contracts applicable to road transport: c. transp. Annex I, part 3). Most of the infringements of the freedom to determine the content of the contract result from mandatory legal and regulatory provisions or public order from which the parties cannot derogate.

Mistrust of terms in a contract

Contracts and legal agreements, like most written documents, are composed of several unique parts that describe specific provisions. One of these functional elements is the contractual clause : an essential written tool that is present in all contracts. A contractual clause is a portion of text written for a specific legal purpose. In other words, the purpose of a contractual clause is to define a specific need, privilege, right, deadline, or obligation. However, it is necessary to carefully read these clauses, which can sometimes be prejudicial to one of the parties.

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Should you be wary of clauses inserted in contracts?

Ambiguous clauses can be dangerous and have serious consequences for the parties, which is why careful attention must be paid to the drafting of these clauses.

Article 1171 of the Civil Code, an innovation in the reform of contract law introduced by ordinance No. 2016-131 of 10 February 2016, is a general provision that aims to prohibit unfair terms that relate neither to the main purpose of the contract nor to the adequacy of the price for the service. Its domain is huge. It includes in particular commercial leases, sales in the future state of completion, employment contracts, employment contracts, banking and financial contracts, distribution and commercial agent contracts, company statutes or shareholders' agreements and transfers of social rights, or even literary and artistic property contracts.

What about unfair terms?

Until the adoption of the ordinance of 10 February 2016, the rules relating to unfair terms were set out in former article L. 132-1 of the Consumer Code, which has become, since the entry into force of the reform of obligations, article L. 212-1 of the same Code. It was deduced that this rule was only applicable to relationships between professionals and consumers. Consequently, the benefit of this system could only be invoked by a consumer or a non-professional, concepts whose definitions have been the subject of intense discussions, both in case law and in doctrine.

Now, unfair terms can be identified in terms of employment law. They then violate the rules of labor law or collective agreements, to the detriment of the employee. If there is any doubt in your mind about a possibly abusive clause in your employment contract, do not hesitate to ask for advice from a contract law lawyer who will tell you whether or not it is abusive. For example, the employment contract may include a non-competition clause, this clause stipulates that the employee does not have the right to exercise the same activity in another company following the termination of his employment contract. For this clause to be valid, it must be justified, limited in time and space, and finally give the right to compensation in return.