In any contract, a question arises: who bears the risk of non-performance?

Limiting and exempting liability clauses make it possible to respond to them. By these stipulations, one of the parties conventionally adjusts the extent of its contractual liability in the event of a breach of its obligations.

The principle validity of clauses has its roots in a fundamental principle of French civil law: contractual freedom (art. 1102 of the Civil Code).

Thus, generally speaking, no legal provision prohibits the insertion of clauses limiting or exempting liability, including in membership contracts (Cass. Civ. 1re, January 19, 1982, nO 80-15,745).

Limits to the principle of validity of clauses exempting or limiting liability

Breach of an essential contract obligation

Article 1170 of the Civil Code states that” any clause that deprives the essential obligation of the debtor of its substance is deemed to be unwritten ”.

What does that mean? That one of the parties to the contract cannot rely on a clause limiting and exempting liability if this clause tends to exempt it from its main obligation.

Illustration by example.

In the early 1990s, a company sent a package containing a response to a public tender via Chronopost, a specialist in express transport.

Transport is late and when the package arrives the offer has expired, which automatically removes the company from the market.

This subpoenas Chronopost, which invokes a contractual stipulation according to which, in case of delay, its liability is limited to the cost of sending the letter, i.e. 122 francs in this case (30 euros in 2024).

The Court of Cassation considered the clause to be deemed unwritten: by guaranteeing delivery within a specific period of time, Chronopost had undertaken an essential obligation of speed and reliability; the clause, which contradicts its scope, is unenforceable (Cass. Com., October 22, 1996, no. 93-18.632).

Legal provisions for special contracts

Limiting and exempting liability clauses are prohibited or restricted in a number of special contracts (for example for certain types of deposit, transport or consumer contracts).

For example, in consumer law,” Are irrebuttably presumed abusive and therefore prohibited, clauses whose object or effect is to eliminate or reduce the right to compensation for the damage suffered by the consumer in the event of a breach by the professional ” (Cass. Civ. 1re, December 11, 2019, no. 18-21.164).‍

Gross or fraudulent misconduct

Under article 1231-3 of the Civil Code, the parties' contractual provisions and in particular the limitation of liability clause will fall if the non-performance is due to gross negligence (that which indicates an extremely serious negligence bordering on fraud) or fraudulent misconduct (intent to harm).

Exemption clauses from tortious liability

Since articles 1240 and 1241 of the Civil Code are of public order, the clauses intended to exempt or mitigate the delictual liability of one of the parties are void (Cass. Civ. 1re, July 5, 2017, no. 16-13.407).

Clauses limiting or exempting liability and third parties to the contract

The contract only creates obligations between the signatory parties. This is the relative effect of the contract (art. 1199 of the Civil Code).

As a result, clauses limiting or exempting liability are generally declared unenforceable against third parties (Cass. Civ. 2E, February 17, 1955, no. 55-02.810; Cass. Civ. 2E, June 15, 1994, no. 92-18.048).

However, it should be noted that in a very particular situation involving a”form of contractual package ” and a responsibility” para-contractual”, the Court of Cassation was able to rule that a third party could be opposed to a limitation of liability clause (Cass. Com., July 3, 2024, No. 21-14.947, obs. D. Houtcieff, D. 2024, p. 1607).

This case law has yet to be confirmed and clarified.

In summary, limiting and exempting clauses are valid in principle, but strictly regulated: they cannot empty the contract of its substance, apply in the event of serious misconduct, or bypass special protections. Their effectiveness therefore depends as much on their drafting as on the context in which they are implemented.

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