The French civil code

Per Art 1108 of the French Civil Code, four requisites are essential for the validity of an agreement: the consent of the party who binds himself; his capacity to contract; a definite object which forms the subject matter of the undertaking and a lawful cause in the obligation. If one of the conditions is absent the contract will be held void. Nullity of contract can be absolute or partial. In order to distinguish between cases of total or partial nullity, theory of cause is applied. Under the theory of cause if the clause had determined the decision of the parties to make a contract it is an essential element and any defect upon this clause will result in the nullity of the contract entirely because this clause is considered to be the principle cause of the obligation of the parties. If the clause had not determined the decision of the parties to make a contract, any defect upon this clause affects the clause itself but the rest of the contract remains valid. This is partial nullity. This distinction allows the court to order null, not contract itself, but the clause in its contractual environment since its provision is likely to render ineffective essential obligation. Thus, the court can correct "the excess of contractual freedom " and ensure " effective protection against the stipulation of the parties by professional unfair terms which by their purpose or effect , disturb the balance of the contract ... advantaging one of the parties and depriving the other of the utility of the act.

In the present case there was a meeting of two wills and Chronopost as the debtor legally bound himself to deliver Dubosc’s documents, the company had the capacity to contract and there was a definite object of the contract which was the performance of a service, i.e. the delivery of the documents. The contract contained a limited indemnification clause reducing damages only to the amount of the transport price in case of delayed delivery on the part of Chronopost. It was signed by the parties to the contract and hence the court needed to assess the validity of this clause. As per court finding’s the essential obligation of Chronopost was to deliver on time and thus their clause of returning money was deemed unwritten. The effect of this was that only the limiting liability clause was held to be null but the contract itself was maintained. The reason the court opted for partial nullity in this case is because nullity make the contract disappear retrospectively. The contract being null is in principle without effect ab initio and each party must make restitution of what has been received even in case of partial performance. Partial nullity in turn allowed the court to maintain the rest of the contract valid and therefore find contractual breach on the part of Chronopost that damages could be granted upon. If partial nullity was not allowed, Chronopost would be able to rely on the indemnity clause to limit their liability. But in this case Dubosc would not have had any interest or cause to be part of the agreement if they were aware that Chronopost could not be held accountable for their promise to deliver on time. Insofar as the limitation clause of compensation would have a contractual nature, it could be fought on the ground of Article 1131 of the Civil Code. Therefore, it was deemed not written that allow the sender to obtain compensation for actual damage he suffered , without

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