Commercial Act

Acte de commerce
Jurisdiction: France

Definition

There are three types of commercial acts:

(i)              Commercial acts by their nature (Actes de commerce par nature);

(ii)            Commercial acts by their nature (Actes de commerce par la forme); and

(iii)           Commercial acts (Actes de commerce par accessoire).

The French Commercial Code offers no precise explanation as to what exactly renders an act "commercial". While the Code lists certain types of acts, which are presumed commercial, the list is not comprehensive.

To determine whether or not an act is commercial, one must instead look to whether the act is commercial in nature (Actes de commerce par nature), commercial in its form (Actes de commerce par la forme), and consider whether the act was meant to satisfy some kind of commercial purpose (Actes de commerce par accessoire).

C com. Arts. L110-1, L. 110-2, and L110-4.

Effects

Commercial acts are subject to the French Commercial Code.

Legal rules related to commercial acts

There are three main issues to consider when analyzing the legal rules, which are applicable to commercial acts:

(i)              Statute of limitations (Prescription), which generally runs five years from the date of the act in question;

(ii)            Procedural rules (Règles de procedure), which include:

a) rules on jurisdiction (determining which Court has jurisdiction to hear a claim) (Règles de compétence juridictionnelle), which is generally the Commercial Court (Tribunaux de commerce); and

b) Rules of Evidence (Règles de preuve) (under French law, the rules of evidence are considered part of their procedural rules); and

(iii)           Substantive rules, which primarily include:

a) whether the parties had capacity to enter into the commercial act (Capacité en droit commercial); and

b) whether the parties fulfilled their obligations under the act (Exécution des obligations).

Rules of procedure

In the absence of a contractual choice-of-jurisdiction clause subjects the parties to arbitration or another form of jurisdiction, the commercial courts (Tribunaux de commerce) have jurisdiction over cases involving commercial acts (Actes de commerce).

Rules of evidence (in commercial matters)

The general French rule is that unless the subject of a commercial dispute involves an important type of contract (such as Sale of Business Assets (Contrat devente du fonds de commerce), or the formation of a particular business entity (Contrat de formation de société) C civ. Art 1835, business persons or entities (Commercants), who are parties to a commercial case, are free to use the evidence that they wish (Principe de la liberté de la preuve) so long as they are acting in the context of commercial needs.  That is, they are generally free to establish, by any means necessary, a commercial act.  Not only is this a major distinction as compared with US law, which sets forth both State and Evidentiary Rules of Evidence, but it is also a distinction from the French Civil Code, which requires that Parties comply with specific evidentiary rules (C civ Art 1341).

Substantive rules (in commercial matters)

There are two primary substantive issues which arise in the context of analyzing the validity of a commercial act,  (i) whether the parties had capacity to enter into a commercial act (at the time they entered into the act) (Capacité en matière commercial); and  (ii) whether the parties' executed their respective commercial obligations (exécution des obligations).

Statute of Limitations

The statute of limitations regarding commercial acts in France generally runs for five years from the date of the act unless other special rules apply (Prescriptions spéciales en matière commercial) and including for claims related to the payment of salaries of corporate employees.

Several special statute of limitations rules are set forth under the Commercial Code, which involve cause of action for payment for food supplied to sailors upon a ship captain’s order (1 year after delivery of the food); supplies of material and other construction products, equipment and ship materials (1 year after the supply); and with works created/made (1 year after receiving the works).

Capacity

The general rule is that persons lacking capacity to enter into civil acts also lack capacity to enter into commercial acts (e.g., minors, protected adults),however French commercial law also excludes emancipated minors from having capacity.