French Contract Formation: Offer, Acceptance, Cause, and Consent

French contract formation law governs how contracts are created, the requirements for valid consent, and the substantive and formal conditions for a contract’s validity. The law was significantly reformed by the Ordinance of 10 February 2016 on the reform of the law of contracts, which modernised the general regime of obligations while preserving the core principles of the French civil law tradition. The reform came into force on 1 October 2016 and applies to contracts concluded after that date.

The 2016 Reform

The Ordinance of 10 February 2016 (ratified by the Law of 20 April 2018) was the most significant reform of French contract law since the enactment of the Code civil in 1804. The reform renumbered the articles of the Code and introduced new provisions on contract formation, interpretation, performance, and remedies. The reform aimed to modernise French contract law, increase legal certainty, and enhance the attractiveness of French law for international contracting.

The reform abolished the requirement of cause as a distinct condition of validity and replaced it with requirements of lawful and certain content. The reform also codified many principles that had been developed by the courts, including the duty of good faith in contract formation and performance, the concept of abuse of circumstances (violence économique), and the rules on unforeseen circumstances (imprévision).

Offer and Acceptance

A contract is formed by the exchange of offer (offre) and acceptance (acceptation). The offer must be precise and firm, identifying the essential elements of the proposed contract and indicating the offeror’s intention to be bound. The offer may be made to a specific person or to the public. The offer must remain open for a reasonable time, and the offeror may revoke the offer only before it has been received by the offeree.

Acceptance must be unconditional and must correspond to the terms of the offer. Acceptance may be express or implied from conduct. Silence does not constitute acceptance unless the parties have a previous course of dealing or unless the contract benefits both parties. The contract is formed at the time and place of acceptance, which is determined by the method of communication chosen by the parties.

Consent and Its Defects

Consent (consentement) is the cornerstone of contract formation. The parties must give free and informed consent. Consent may be vitiated by error (erreur), fraud (dol), or duress (violence), which render the contract voidable. The 2016 reform added the concept of abuse of circumstances (violence économique), which arises when one party exploits the other party’s state of dependency to obtain an excessive advantage.

Error is a mistaken belief about a material aspect of the contract. The error must be excusable and must relate to the substance of the performance or the identity of the other party. Fraud is intentional deception by one party to induce the other party’s consent. Duress is the threat of harm that overcomes the will of the other party. The contract is voidable by the party whose consent was vitiated.

Capacity

The parties must have capacity to contract. Minors and protected adults lack capacity and cannot validly contract. The contract entered into by a person lacking capacity is voidable and may be annulled on the application of the protected person or their legal representative.

The law of capacity was reformed by the Law of 5 March 2007 on the protection of adults, which introduced a graduated system of protection. A person may be placed under guardianship (tutelle) or curatorship (curatelle), depending on the degree of impairment. The legal representative must authorise certain contracts, and the protected person may make certain contracts alone, depending on their capacity.

Formal Requirements

French law generally follows the principle of consensualism: no formality is required for the validity of a contract. The exchange of consent alone is sufficient. However, certain contracts are subject to formal requirements for validity. Contracts involving immovable property must be made by notarial deed. Consumer credit contracts must be in writing and include prescribed information. Contracts for the transfer of businesses must be in writing and registered.

The 2016 reform maintained the principle of consensualism while introducing new formal requirements for information obligations. The parties must provide each other with certain information before the contract is concluded, particularly in consumer contracts and contracts with professionals. Failure to provide the required information may affect the validity of the contract.

The Requirement of Cause (Abolished)

Before the 2016 reform, cause (the reason or motive for the contract) was a distinct condition of validity. The cause was the immediate reason that induced each party to contract: the buyer’s cause was the acquisition of ownership, and the seller’s cause was the price. The cause had to exist and be lawful.

The 2016 reform abolished cause as a distinct condition of validity. The reform replaced cause with requirements that the contract have lawful and certain content. The contract must not contravene public policy (ordre public) or good morals (bonnes moeurs). The content must be determined or determinable. The abolition of cause simplified contract formation and aligned French law with other civil law systems.

The Requirement of Objet

The object (objet) of the contract is the performance to which each party is bound. The object must exist, be determined or determinable, and be lawful. The object of the seller’s obligation is the thing sold, and the object of the buyer’s obligation is the price. The object must be possible: performance that is impossible at the time of formation renders the contract void.

The requirement of objet was maintained by the 2016 reform, though it is now integrated into the general requirement of lawful and certain content. The reform clarified that the object must be sufficiently determined to enable the contract to be performed.

Pre-contractual Information

The parties have a duty to inform each other of material facts before the contract is concluded. The duty of information (devoir d’information) requires a party to disclose facts that are relevant to the other party’s decision to contract. The duty is particularly strict for professionals dealing with consumers and for contracts involving complex or risky transactions.

Failure to disclose information may constitute fraud or error and may render the contract voidable. The 2016 reform codified the duty of information in Article 1112-1 of the Code civil, providing that a party who knows a fact that is decisive for the other party’s consent must inform the other party if the other party legitimately ignores the fact.

Good Faith

Good faith (bonne foi) is a fundamental principle of French contract law. The parties must act in good faith at all stages of the contract, from formation through performance to termination. The principle of good faith was affirmed by the 2016 reform, which added a specific provision requiring good faith in contract formation.

The good faith obligation includes duties of cooperation, loyalty, and information. The parties must not act in a manner that defeats the legitimate expectations of the other party. The courts have applied good faith to invalidate unfair contract terms, to impose duties of renegotiation in long-term contracts, and to prevent abuse of rights.