Business Contracts: what is the lawyer‘s role?

Commercial contracts are by nature very complex. Trying to rely on standard contracts without the assistance of the expert what the competent lawyer in commercial law is a significant risk of gout.

However, due to the lack of uniqueness of trade laws, we will not discuss in this article, the particular rules that apply to each type of commercial contracts, but only the general rules. Indeed, there is a wide variety of special contracts which trade as examples commercial leases, contracts for sale of goodwill, franchise agreements, distribution etc.. ....

However we will return in future articles ...

First, whether the rules of commercial contract apply to an act must be achieved to qualify.

Indeed, the existence of an act creating rights and legal obligations makes it necessary to specify a qualification for the scheme which must be applied. This is important: failure to arrive to specify the system, the contract is deemed not to be established.

However, in practice, qualifying, which is not explicitly required, is often made implicitly by the parties. It is derived from the obligations of the act.

Thus, the qualification of a commercial contract can be inferred easily with certain characteristics specified by the courts.

Indeed, the contract is trading when it concerns a commercial transaction or is carried by a merchant for purposes of his trade. It is then submitted to both the trade rules and the general theory of contract.

However, to facilitate its characterization, a presumption has been permitted by the law: all contracts entered into by a merchant are basically acts of commerce.

Because of this presumption, the trader must prove that a contract, a source of litigation, was concluded without his having to do with his professional activity. He will bring this evidence based on the nature of the object or cause the contract. It may well benefit from the protection of consumer law very favorable to consumers.

As for acts entered into by a merchant with its consumers, they are classified as mixed acts: these acts are born of trade obligations borne by the trader while those born at the expense of its clients are civil obligations.

However, the laws protecting the consumer do not define this concept that pushes the case to clarify the duty.

However, she often wavered between a broad and another narrow.

The broad approach is to consider that the merchant signing a contract for his business is considered as such, but outside this activity is a consumer.

The narrow view that the consumer is only the individual who contracts for personal or family need.

After many hesitations, the First Civil Chamber, in a landmark decision of January 30, 1996, held that the act was the act of commerce directly related to the professional activity of trader.

However, the existence of mixed acts, protection of consumer law and practice of inventiveness in creating new types of commercial contracts are all factors that make increasingly complex legal regime of the commercial contract.

This complexity justifies the intervention of an experienced lawyer to avoid the traps set by legislation and case law from this voluminous and contract negotiation.

Indeed, once the classification of commercial transaction cleared, a legal system it is then applied.

Therefore, the qualification of acts of trade involves the application of two fundamental rules of that jurisdiction and that of proof.

The rules of jurisdiction mean the commercial court of the domicile of the defendant. That court slice of such disputes.

However, merchants may provide for arbitration clauses before submitting the entry of the judge their disputes to arbitrators.

They can also be specified in the jurisdiction clauses proficient commercial court to hear their dispute.

Such clauses should be handled with care and attention including providing for alternative dispute resolution (ADR). We must ensure that their content is valid. The bad surprise would be to the discovery, while the conflict erupted, they violate the right to act and should be considered null and not written by the judge.

Therefore, in the drafting of such clauses, particularly because they tend traps, it is absolutely necessary to have recourse to the advice of a lawyer informed and experienced.

As for the mixed acts (past between traders and non-traders), they create difficulties for which rule of jurisdiction applies to them: that the regime acts of commerce or the civil law.

The Court held that the non-trader could choose to bring the party to court as civil court business while the trader could choose to have the civil court.

The second rule to keep in mind in front of a commercial contract is the freedom of proof (Article L. 110-3 of the Commercial Code).

It is obvious that this rule facilitates the proof of the proof of claims of the parties. However, the writing is the best way to avoid each other many unnecessary difficulties.

In addition, case law is restrictive on the scope of this article. Thus, for this rule must still apply the act to be shopping and parties!

The scheme of the Civil Code therefore applies to acts which imposes joint written evidence for all acts of more than 1500 Euros (Article 1341 Civil Code).

This rule of freedom of evidence leads to several consequences including:

The proof of the contract may be made by any means,

If writing was done, the proof may be made against the entries in writing by all means.

Concerning acts mixed, Article L.110-3 of the Civil Code is beneficial to the non-trader since the action against the trader has his case open while the action of a trader to a non-merchant subject to the rules of civil law.

Prescribing habits are also shorter for a commercial contract to avoid disputes later and so much more, they are evidence-based free weakened by time.

 As for the obligations arising in connection with trade whatsoever between traders or with non-traders, but not later than ten years.

Finally, if all traders adhere to contractual obligations for the needs of their business, they are jointly and severally liable.

Thus, the general rules provided to all commercial acts by the legislature are rules favor to facilitate trade by allowing greater freedom among traders.

They also subscribe to the principle that the merchant is a skilled professional who does not need the protection afforded to consumers.

However, the legislature has intervened in recent years, especially with the NRE Act of 2001 to protect weaker parties say against larger companies, particularly in the context of distribution contracts.

Indeed, the open-ended contracts can be broken unilaterally since perpetual contracts do not exist in French law.

In a commercial contract, breach of a sudden permanent contract concluded for years can have serious consequences for the small supplier to the retail side.

NRE 2001 is thus formalized the unilateral termination of a contract between traders by penalizing any sharp break.

Therefore, under Article L442-6-1-5 of the Commercial Code, the party wishing to break respected notice that the term has unfortunately not been clarified by the legislature.

The parties have a vested interest in the state in their contracts at a time when their relationship has not deteriorated further.

If such precision was not mentioned in the contract, the company wishing to break should take a number of precautions to avoid being convicted for breach of contract brutal.

The presence of a lawyer is necessary during all stages of the existence of a commercial contract for an indefinite period: its conclusion, to avoid the pitfalls when you write, the birth of litigation to enforce its rights.

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