Action in tort liability due to a breach of contract: the rights of the third party to the contract

A contract, in principle, only produces effects between the parties who entered into it. Its non-performance can nevertheless cause harm to a third party: a tenant affected by poorly executed work, a company experiencing an interruption of service, a manager exposed to the consequences of an accounting error, or an heir confronted with the effects of a transaction concluded by the deceased.

The third party can then initiate tort proceedings against the party responsible for the breach of contract, without having to demonstrate a fault distinct from the non-performance of the contract.

This action is not without limits, however. The third party must establish the existence of harm that is personal, certain, and directly caused by the alleged breach. They may also be subject to the contractual clauses governing the debtor's liability.

Recent case law has thus progressively sought a balance between compensation for the third party and respect for the economics of the contract to which the latter is not a party.

Can a third party invoke the non-performance of a contract?

Article1199 of the Civil Code enshrines the principle of the relative effect of contracts:

"A contract only creates obligations between the parties."

Therefore, in principle, a third party cannot demand the execution of the contract or claim the rights that it grants to one of the contracting parties.

However, the contract constitutes a legal fact with respect to third parties. Article1200 of the Civil Code specifies that they must respect the legal situation created by the contract and that they may rely on it, in particular to provide proof of a fact.

In particular, when a breach of contract causes him or her personal harm, the third party can take action against the defaulting co-contractor on the basis of extra-contractual liability provided for inArticle 1240 of the Civil Code.

The action remains tortious since no contract binds the victim and the perpetrator of the harm. The breach of contract, however, constitutes the event giving rise to this liability.

From the "Boot Shop" stop to the "Bois Rouge" stop

In its plenary assembly ruling of October 6, 2006, generally referred to as the "Boot Shop" ruling, the Court of Cassation established the following principle:

"A third party to a contract may invoke, on the basis of tort liability, a breach of contract provided that this breach has caused them harm."

In this case, the tenant-manager of a business accused the landlords of failing to properly fulfill their maintenance obligations towards their tenant. Although a third party to the lease, he directly suffered the consequences of this non-performance on his business.

The solution sparked significant debate. It allowed a third party to invoke a contractual obligation without being subject, ostensibly, to all the rules and limitations stipulated by the contract.

After some jurisprudential hesitations, the Plenary Assembly reaffirmed this principle in the"Bois Rouge" ruling of January 13, 2020.

The Court of Cassation ruled that:

• A breach of a contractual obligation by a contracting party may constitute an unlawful act with respect to a third party when it causes them harm;
• the third party does not have to demonstrate a tortious or quasi-tortious fault distinct from this breach;
• However, he must establish the causal link between the breach of contract and his own damage.

The third party therefore benefits from a favorable evidentiary regime regarding fault. However, it is not enough for them to simply establish that a contract has been poorly performed: they must also demonstrate that this breach caused them personal and compensable harm.

What are the conditions for a third party to bring an action against the contract?

The action requires the fulfillment of the three usual conditions of civil liability.

A breach of contract

The third party must begin by identifying the obligation that has not been properly performed.

This may include, in particular:

• of an obligation to deliver or supply;
• of a maintenance obligation;
• of a safety obligation;
• of a duty to inform or advise;
• of an obligation to comply;
• of a delay in the performance of a service;
• due to poor workmanship;
• of an error made in an accounting, technical or financial task.

The third party must establish the content of the obligation and the reality of its non-performance. However, this does not make them a creditor of that obligation, nor can they demand performance of the contract in place of the other party.

A personal and certain injury

The applicant must establish that he himself suffers harm.

This harm can be material, financial, commercial, or, in certain situations, moral. It may include, in particular:

• an operating loss;
• the damage to property belonging to a third party;
• additional expenses;
• the loss of an opportunity;
• a loss of customers;
• damage to image or reputation;
• the temporary deprivation of the use of a property;
• bodily injury;
• the personal consequences of misinformation.

However, a third party cannot claim compensation for harm suffered exclusively by one of the contracting parties. Nor can it claim, under the guise of damages, the economic benefit that the contract reserved for one party.

A causal link

The damage must be directly linked to the breach of contract.

The mere fact that the breach of contract and the alleged damage occurred simultaneously is not sufficient. The claimant must establish that, without the breach, the damage would not have occurred or would have been of a different magnitude.

This demonstration can be complex when several faults, economic decisions or external events have contributed to the damage.

The harm suffered by the third party must be distinct from that suffered by the contracting party

The commercial chamber of the Court of Cassation clarified this requirement in a judgment of June 15, 2022, No. 19-25.750.

In this case, an individual had taken out a loan with a fixed repayment term and invested the borrowed funds in a life insurance policy. The redemption of the investment was intended to repay the loan. As the transaction did not produce the expected results, the borrower was left with additional debt.

After her death, her heirs sought to establish the tortious liability of the bank and the institution involved in the investment. They alleged breaches of contract with their mother and argued that the increase in the estate's liabilities had personally caused them harm.

The Court of Cassation rejected this analysis.

She ruled that an heir can only bring a tort action by invoking a contractual breach committed against his predecessor if he seeks compensation for harm that is personal to him.

However, this does not constitute personal harm to the heir:

• the damage that could have been remedied, during the deceased's lifetime, by an action taken by the deceased;
• or the damage that can still be remedied, after his death, by an action brought in favor of the estate.

The increase in the liabilities of the estate is therefore not necessarily sufficient to characterize personal harm to the heirs.

Is the action personal to the heir or is it transmitted by the deceased?

The distinction made by the Court of Cassation is important.

When a person suffers, during their lifetime, harm resulting from the non-performance of a contract to which they are a party, their action for contractual liability generally becomes part of their estate.

Upon his death, this action is transferred to his heirs. Pursuant to Article724 of the Civil Code, they are automatically vested with the property, rights and actions of the deceased.

They can therefore exercise, on behalf of the estate, the contractual action that belonged to their predecessor.

In this scenario, the heirs are not acting as third parties who are victims of a breach of contract. They are pursuing the exercise of a right transmitted by the deceased and must comply with the rules governing contractual actions: statute of limitations, evidence, limitation of liability clauses, and other applicable stipulations.

The heir's personal action is different. It presupposes a personal injury, which is not to be confused with that suffered by the deceased or with the reduction of the estate's assets.

Before initiating any proceedings, it is therefore necessary to determine precisely:

• who initially suffered the damage;
• on what date did this damage occur;
• if the deceased himself held a share;
• if this share has been passed on to the estate;
• if the heir claims a genuinely distinct harm.

An error in choosing the legal basis may lead to the rejection of the claim or raise a limitation issue.

The third party cannot obtain performance of the contract by equivalent

The third party's action aims at obtaining compensation for their damages, not at securing the rights that the contract confers on their creditor.

The distinction is sometimes subtle.

When a third party claims an amount corresponding exactly to the service that the debtor was to provide to his contracting party, the judge must determine whether he is actually seeking compensation for personal injury or whether he is trying to obtain performance by equivalent of a contract to which he is not a party.

The third party must therefore specify the particular consequences that the non-performance has produced in its assets or on its business.

For example, a subtenant or a tenant-manager deprived of normal use of the premises may claim personal business interruption losses. However, they cannot demand from the landlord the enforcement of all the rights that the main lease grants exclusively to the tenant.

Similarly, a company affected by the non-performance of a contract entered into by another entity within its group must demonstrate its own specific harm. The mere existence of capital or economic ties with the contracting company is insufficient.

Are limitation of liability clauses enforceable against third parties?

For a long time, one of the main criticisms leveled at the "Boot Shop" case law was the risk of placing the third party in a more favourable position than the contractual creditor.

The creditor could be subject to a cap on compensation, while the third party alleging the same breach on a tortious basis could have claimed full compensation.

The Commercial Chamber responded to this criticism in a ruling dated July 3, 2024, No. 21-14.947.

The Court of Cassation held that a third party who alleges a breach of contract may be subject to the conditions and limits of liability applicable between the contracting parties.

She justifies this solution with two objectives:

• not to thwart the debtor's expectations, who has committed himself in consideration of the overall economics of the contract;
• not to confer on the third party a more advantageous position than that of the creditor of the unfulfilled obligation.

A limitation of liability clause can therefore reduce the amount of compensation due to the third party, even if the latter did not sign the contract.

This enforceability, however, presupposes that the clause itself is valid and that it is intended to apply to the breach in question. It may, in particular, be disregarded when it deprives the debtor's essential obligation of its substance or in other situations where general law excludes its application.

Prescription, forfeiture and conciliation: the contract also governs the action of the third party

The Court of Cassation extended this development in a judgment of the commercial chamber of December 17, 2025, No. 24-20.154.

A company director sought to establish the tortious liability of his company's accountant, alleging errors made in the execution of his engagement letter. The accountant countered with several clauses in the contract concluded with the company:

• a limitation period;
• a contractually shortened prescription period;
• a prior attempt at conciliation.

The Court of Cassation considered that these stipulations could be invoked against third parties since they formed part of the conditions and limits of liability applicable between the contracting parties.

The practical implications of this decision are significant. Before taking action, the third party must now seek to obtain and examine the contract whose breach they allege.

In particular, he must check:

• the existence of a compensation cap;
• exclusions of liability;
• the limitation or preclusion periods;
• the procedures for reporting damages;
• the existence of a complaints procedure;
• a possible obligation for prior mediation or conciliation.

The third party cannot therefore isolate the obligation that is favorable to it while ignoring the stipulations that organize its consequences.

What recourse does a third party have when they are the victim of a breach of contract?

Before taking any action, several questions need to be considered.

Is the applicant truly a third party to the contract?

It is necessary to determine whether the person is acting personally or as an assignee of a contracting party. An heir, assignee, or company succeeding to the rights of another person may sometimes exercise a contractual action transferred to them rather than a personal tort action.

What obligation was disregarded?

The contract must be analyzed in order to precisely identify the unfulfilled obligation, its debtor, its content and its limits.

What is the third party's personal injury?

The claimant must isolate their damage from that suffered by the contractual creditor. A simple economic, accounting, or inheritance-related impact is not always sufficient.

Can a causal link be demonstrated?

It is necessary to establish that the breach of contract is indeed the cause of the damage and to anticipate other factors that may be invoked by the defendant.

Which clauses can be invoked?

The entire contract must be examined, including general terms and conditions, annexes, limitation clauses, time limits for action and prior dispute resolution mechanisms.

Is the action still admissible?

The starting point for the limitation period depends in particular on the date on which the third party knew or should have known the facts enabling them to take action. A contractual clause may also provide for a shorter period or a preclusion.

What are the key takeaways?

A third party to a contract can bring a tort claim against a contracting party by invoking the poor performance of the contract, without having to demonstrate a separate fault.

However, it must establish:

• a specifically identified breach of contract;
• a personal, certain and reparable injury;
• a direct causal link between this breach and the resulting damage.

When the harm actually belongs to the other party to the contract, a third party cannot appropriate it by acting on a tortious basis. This distinction is particularly important in the presence of heirs, companies belonging to the same group, or chains of contracts.

Furthermore, a third party invoking a contract must now accept its terms and limitations. Clauses limiting liability, as well as certain clauses concerning statutes of limitations, preclusion, or prior conciliation, can be invoked against them.

The dispute therefore requires a comprehensive analysis: it is necessary to study the breach, the status of the claimant, the exact nature of his damage, the causal link and all the stipulations likely to frame his action.

ARST Avocats assists companies and their managers in the analysis of business contracts and commercial disputes, whether it is to prevent risks when drafting the contract or to defend their interests when a non-performance affects a co-contractor or a third party.

Morgan Jamet,
Partner Attorney – ARST Avocats