Unilateral price fixing in service contracts

The new article 1165 of the Civil Code provides: " In service provision contracts, in the absence of agreement between the parties before their execution, the price may be fixed by the creditor, on condition that he justify the amount. in case of dispute. In the event of abuse in the fixing of the price, the judge may be seized of a claim for damages.

It follows implicitly from the rule thus laid down:

• on the one hand, that the so-called service provision contracts can be formed, unless there is a special provision specific to a type of contract which would fit into such a category, by an agreement between the parties which would not relate to the price;
• on the other hand, that in such a case, in the absence of a legal or contractual provision which would provide for another method of fixing the price, it could be determined unilaterally by the creditor.

Such a principle carries strong consequences insofar as it confers on the creditor the power to impose on the other party the price of the service once the contract has begun to be performed, which moreover does not seem to mean that it is necessary that the performance of the creditor has begun to be provided, since it is not to this fact that the aforementioned faculty is attached.

In view of the fact that it is absolutely not rare, in practice, and on the contrary even frequent, that the parties can be considered as being bound by a contract in the absence of any writing formalizing it and that the execution of this it may have started without the price issue having been finalized, this new provision is likely to apply in such cases to the advantage of the creditor and to the detriment of the debtor.

Such a mechanism is not devoid of relevance insofar as it is intended to operate in situations where it could be considered that the price was not a determining condition of the consent of the two parties, in any case of the debtor, since the latter did not take care to agree with the creditor before the execution of the contract.

It could moreover be deduced from this provision a form of guarantee of compliance with the obligation to behave in good faith, since it would tend to prevent the debtor, once performance of the contract has begun or even been completed, from to exercise a power of discussion of the price with regard to the creditor who, for his part, would be in a situation where he would no longer have the possibility of not providing the service if the price does not suit him.

But the mechanism also allows the abuse of the creditor, who could start the execution of the contract to then impose the price on the debtor or even impose on him a price that he would not have accepted if he accepted it. had known before the execution.

However, the limit of the power conferred on the creditor, if it exists, since he must on the one hand be able to justify the price and exposes himself in the event of abuse to the payment of damages, does not seem to be able to be put in works outside of a court of law.

And it would induce the demonstration of an abuse which, with regard to the determination of the price, would have vocation to make play a difficult role to the judge since returning to appreciate what should be the normal price of a service.

Knowing finally that the mode of repair would be the granting of damages and not the questioning of the price.

The application of article 1165 of the Civil Code therefore potentially conceals for the debtor of the payment of the price a power conferred on the creditor which can be formidable.

The difficulty is to grasp precisely what the scope of this provision will be, defined as that of so-called “ service provision ” contracts, a category that refers more to an economic than a legal vision.

If the business contract or work contract seems incontestably at the heart of such a concept, it cannot be said that it would limit it.

For example, can certain other nominate contracts, such as the mandate and its variations, be considered as part of it? And what about contracts, complex, which would partially include a " provision of service "?

Once again, the lawyer must assess the advisability of preventing the application of such a provision resulting from the reform of contract law and provide, if necessary, the mechanism adapted to the contractual relationship which he will have to know to prevent uncertainties. highlights.