French Legal Instrument (which is both civil and commercial)
Introduction and definition
A "mixed act" is a legal instrument in which the French commercial rules apply to one of the parties and civil rules apply to the other. Many legal acts fall into this category, raising questions of which courts maintain jurisdiction over the act and the parties thereto.
In deciding which French courts maintain jurisdiction over an acte mixte, practitioners and Courts look first to what rules the parties have set forth in the relevant agreement. Failing a choice of law and jurisdiction clause, however, Courts will look to whether the civil or commercial codes set forth competence rules pertaining to the act.
Clause attributive de compétence -- Choice of jurisdiction clause (as it applies to legal acts which are both civil and commercial in nature)
Since the law of 15 May 2001 was adopted, a dispute resolution clause may be held lawful in an acte mixte, which would bind both a business professional and a lay person. A territorial competence, clause, however [Clause de compétence territorial], is only lawful in commercial acts involving two business professionals.
The statute of limitations of such acts is ten years according to Art. L 110-4 of the French Commercial Code unless one of the statutes of limitations set forth under Art. 2272 of the French Civil Code applies (in which case, courts will apply the shortest statute of limitations).
The concept of Solidarité is presumed with respect to co-debtors who would have entered into an Acte de commerce, but not with respect to co-debtors involved in an Acte civil.
If a dispute arises and there is no specific mention of competence or jurisdiction, a dualist approach is adopted, known as the Régime dualiste, that is, to the extent that it is practical, both civil and commercial laws apply respectively to the parties to a dispute. If applying both commercial and civil laws becomes impractical, a judge unilaterally decides whether civil or commercial laws should be employed, an approach known as the Régime unitaire.
Régime dualiste -- Dualist regime (as it applies to legal acts which are both civil and commercial in nature)
Under this approach, in the event that there is a legal act, which is both commercial and civil in nature, French commercial rules will apply to the business professional/entity, while the civil rules will apply to the non-professional party. In this case, one must consider which Court has jurisdiction over the case in question [Compétence du tribunal (Acte mixte)], the evidentiary rules applicable to each of the parties [Preuve (Acte mixte)], as well as any releventpresumptions [Présumptions (Acte mixte)].
Régime unitaire -- Unitary regime (as it applies to legal acts which are both civil and commercial in nature)
In the event it is impractical to apply the dualist approach [Régime dualiste] in the application of laws as they apply to parties to a legal act that is both civil and commercial in nature [Acte mixte], a judge may decide whether to have the commercial or civil rules applied to legal act.