The Service Contract (Contrat d’Entreprise)

Abstract

The service contract, on the basis of the general definition given by the Civil Code (Art. 1710), is defined by the French case law as a contract whereby a person called the contractor undertakes the obligation to carry out a defined task on behalf of a principal in view of a remuneration, and without being either an agent or an employee of the principal. The economic importance of the service contract is at present unfortunately not reflected by a clearly determined legal identity or a strong and consistent statutory framework. These shortcomings call for a proposal of reform. We may choose between proposing either a reform of the service contract law as it appears in the existing civil law, or a solution that is part of a wider reform of the law of special contracts. These two options are each underpinned by a different vision of the legal system. Indeed, proposing a reform of service contract law inside the existing positive law amounts to giving priority to the typological vision of contractual types, a vision marked by redundancies and shortcomings. We will follow instead the spirit of the Civil Code of 1804, a spirit that is underlain by exigencies of completeness and openness for the legal system, so as to propose a new identity and a new legal framework for the service contract. This in turn is part of a wider reform of the law of special contracts based on classification.