Civil Code vs Commercial Code in France: is your sale commercial?

Why French law distinguishes civil and commercial sales

Every sale of goods in France is governed first by the general law of sale in the Civil Code. Article 1582 of the Civil Code defines the sale as the contract by which one party undertakes to deliver a thing and the other to pay for it, and Articles 1582 and following set out the duties to deliver, to warrant and to pay. That civil law of sale applies whoever the parties are. On top of it, however, France maintains a separate body of rules for commercial transactions, gathered in the Commercial Code. The Civil Code vs Commercial Code France question is therefore not about choosing one code instead of the other, but about which additional commercial rules layer over the ordinary law of sale.

The distinction is historical and structural. French private law separates civil acts, which any person may perform, from acts of commerce (actes de commerce), which are the characteristic operations of traders and businesses. Because commerce needs speed, credit and simplicity, the law attaches a lighter, faster regime to commercial acts: a specialist court, freer rules of evidence, and rules on liability and limitation adapted to trade. A sale of goods can fall into either category, and the same transaction can even be commercial for one party and civil for the other.

For a foreign business the practical stakes are high. Whether your sale is a commercial sale in the French sense determines the court you will litigate in, the evidence you must keep to prove the deal, whether co-buyers are jointly liable, and how many years you have to bring a claim. Getting the characterisation right at the contracting stage is far cheaper than discovering it in a dispute. This article explains how the line is drawn and what each consequence means in practice. For the wider map of which rules apply, see our overview of which law governs the sale of goods in France.

What makes a sale an acte de commerce under Article L110-1

The starting point is Article L110-1 of the Commercial Code, which lists the operations the law treats as acts of commerce. At the head of the list is the purchase of movable goods for the purpose of reselling them, whether resold in the same state or after working on them. A trader who buys stock to sell on is therefore performing an acte de commerce each time. This category of commercial act by nature captures the ordinary trading sale: the intention to resell at a profit is what gives the purchase its commercial character.

French law recognises three routes by which a sale becomes commercial. The first is commercial by nature: the operation itself appears in Article L110-1, such as buying goods to resell. The second is commercial by form: certain instruments are commercial whatever the underlying transaction, the classic example being the lettre de change (bill of exchange), which is a commercial act by its form alone. The third is commercial by accessory: an act that would otherwise be civil becomes commercial because it is performed by a trader for the needs of the business.

The accessory theory (théorie de l'accessoire) does much of the work in borderline cases. A purchase of office furniture, a delivery van or raw materials is civil in the abstract, but becomes commercial when a trader acquires it for the business. Conversely, an act that is commercial in the abstract can be pulled back towards civil law if it is detached from any trade. The characterisation thus depends less on the label the parties use than on who acts and why, which is why the Civil Code vs Commercial Code France analysis always begins with the status and purpose of each party.

Commercial, civil and mixed acts, and how status is assessed

Once you know how an act becomes commercial, three situations can arise. A sale is fully commercial when it is an act of commerce for both parties, typically a sale between two businesses each acting for its trade. A sale is fully civil when it is commercial for neither, for example a private individual selling a second-hand item to another private individual. Between the two sits the mixed act (acte mixte), which is commercial for one party and civil for the other.

The mixed act is common and important. When a business sells to a consumer, the sale is a commercial act for the professional seller but a civil act for the private buyer. French law then applies a split regime: each party is broadly judged by the rules of its own side. The consumer keeps the protections and evidence rules of civil law, while the trader is held to the commercial regime. This asymmetry explains many of the practical results below, and it is the reason a single contract cannot always be placed neatly on one side of the line.

Status is assessed party by party and act by act. The question is whether the person is a trader (commerçant) and whether the particular sale was carried out for the needs of that trade. A company that habitually buys and resells goods will normally be acting commercially, but even a trader can perform a civil act outside the business, and a non-trader can occasionally be caught by a commercial instrument. Because the characterisation is a question of law, the courts, and ultimately the Cour de cassation, control it and are not bound by the description the parties gave their contract.

Consequences: court, evidence, solidarity and the five-year deadline

Characterising a sale as commercial changes four things that matter in any dispute. The first is jurisdiction. Under Article L721-3 of the Commercial Code, the commercial court (tribunal de commerce) hears disputes relating to commercial acts and disputes between traders. A dispute over a commercial sale therefore goes to a specialist court staffed by lay judges drawn from business, rather than to the ordinary civil court. For a mixed act, the non-trader usually has an option, and can choose to bring the trader before the commercial court or the civil court.

The second consequence is freedom of evidence. In civil matters, proving a contract above a modest value generally requires a signed writing. In commercial matters the rule is reversed: against a trader, a commercial act may in principle be proved by any means, including invoices, order confirmations, emails, delivery notes and correspondence. This flexibility is one of the main practical advantages of the commercial regime, but it cuts both ways: a supplier can prove a sale more easily, and can also be held to loose exchanges it might prefer to disown.

The third consequence is the presumption of solidarity. In civil law, joint and several liability between co-debtors is never presumed and must be stipulated. In commercial matters, the courts have long presumed that co-debtors under a commercial obligation are jointly and severally liable, so that a creditor may claim the whole debt from any one of them. For a seller pursuing several commercial buyers, this presumption is a significant recovery tool that the civil regime does not offer.

The fourth consequence is the limitation period. Article L110-4 of the Commercial Code sets a five-year period for obligations arising between traders, or between traders and non-traders, in connection with their commerce. In practice this aligns with the general five-year civil limitation, but it is the commercial text that governs the trading sale and it carries its own starting points and exceptions. Missing it bars the claim, which is why the deadline should be diarised from the moment a problem appears. For where a claim is heard, see which court hears a commercial debt.

Why the civil vs commercial line matters to a foreign seller

For a business selling into or buying from France, the Civil Code vs Commercial Code France question is not academic; it shapes how a dispute will actually run. If your French counterparty is a trader and the sale serves its business, you are almost certainly in commercial territory, which means the tribunal de commerce, freer proof, and the possibility of pursuing co-buyers jointly. Knowing this in advance lets you keep the right records and choose the right forum rather than reacting after the event.

The evidence point deserves particular attention. Because a commercial sale can be proved by any means against a trader, the ordinary paper trail of international trade, purchase orders, pro-forma invoices, shipping documents and email confirmations, becomes usable proof of the contract and its terms. A foreign seller who documents each order carefully is therefore well placed, while one who relies on informal understandings may find those same informal exchanges used against it. Disciplined documentation is the single most valuable habit in this regime.

The five-year limitation under Article L110-4 of the Commercial Code is the other point to watch. Cross-border disputes often surface late, after goods have been used, inspected or on-sold, and the clock can be well advanced before lawyers are instructed. A foreign business should treat the discovery of a defect, a shortfall or a non-payment as the moment to take advice on deadlines, because the commercial limitation is a hard cut-off once it has run. Where the sale is cross-border, the applicable-law and jurisdiction analysis sits alongside this one and should be run together.

Worked examples of commercial and mixed sales

A first example: a French wholesaler buys a container of components from a foreign manufacturer to resell to French assemblers. The purchase is a commercial act by nature for the wholesaler under Article L110-1 of the Commercial Code, and the manufacturer is also acting for its business, so the sale is commercial on both sides. A dispute over quality or payment goes to the commercial court, can be proved by the trading documents, and is subject to the five-year commercial limitation.

A second example: a manufacturer sells a specialised machine to a French company that will use it in production rather than resell it. The buyer is not reselling, so the purchase is not commercial by nature; but the buyer is a trader acquiring the machine for the needs of its business, so the act is commercial by accessory. The sale is again commercial on both sides, and the commercial regime applies to a later dispute over conformity or delay.

A third example: the same manufacturer sells a machine directly to a private individual for personal use. Here the buyer is not a trader and is not acting for any business, so the sale is a mixed act. The individual keeps civil-law protections, including the stricter evidence rules, and may choose whether to sue in the commercial or the civil court. On top of the mixed-act rules, consumer-law protections may also apply, which is a separate layer covered in our note on which law governs the sale of goods in France.

Practical drafting and evidence tips

Because the characterisation follows the substance rather than the label, the contract should make the commercial reality clear on its face. Identify each party by its trade register details, state that the buyer is acquiring the goods for the purposes of its business, and record the intended use or resale where relevant. This does not override the legal analysis, but it helps a court place the sale correctly and reduces the room for a counterparty to argue that a sale was civil in order to escape the commercial regime.

Evidence discipline is the practical heart of a commercial sale. Keep signed general terms and conditions, numbered purchase orders, order acknowledgements, delivery notes and invoices, and preserve the email chain that formed the deal. Since a commercial act can be proved by any means against a trader, a coherent file will normally establish both the existence of the contract and its terms. Conversely, gaps in the file give a defaulting buyer room to dispute what was agreed, so the file should be built as the transaction happens, not reconstructed afterwards.

Use clauses to fix the four consequences rather than leaving them to default. A jurisdiction clause can confirm the competent court; a solidarity clause can secure joint and several liability where several buyers are involved; and clear payment and delivery terms give the documents you will later rely on their meaning. None of these clauses changes whether the act is commercial, but together they make the commercial regime work predictably in your favour. See our guidance on which court hears a commercial debt when drafting the forum clause.

Steps to determine the character of your sale

Working through the analysis in order avoids the common mistake of assuming that any sale involving a company is automatically commercial. The following sequence takes you from the parties to the consequences.

Frequently asked questions about civil vs commercial sales in France

Is a sale between businesses always commercial in France?

Usually, but not automatically. A sale is commercial when it is an act of commerce for the party in question, which is the case when a trader buys goods to resell or acquires them for the needs of the business. A sale between two businesses each acting for its trade will normally be commercial on both sides, but a company can occasionally perform a civil act outside its commerce.

What is an acte de commerce?

An acte de commerce is an act the law treats as commercial. Article L110-1 of the Commercial Code lists the main ones, including the purchase of movable goods to resell them. An act can be commercial by nature, by form (such as a bill of exchange), or by accessory, meaning it is done by a trader for the purposes of the business.

Which court hears a commercial sale dispute?

The commercial court, the tribunal de commerce, hears disputes over commercial acts and between traders under Article L721-3 of the Commercial Code. It is staffed by lay judges drawn from business. In a mixed sale, the non-trader can usually choose between the commercial court and the ordinary civil court.

How long do I have to sue on a commercial sale?

Article L110-4 of the Commercial Code sets a five-year limitation period for obligations arising in connection with commerce, whether between traders or between a trader and a non-trader. The deadline is a hard cut-off, so it should be diarised as soon as a defect, shortfall or non-payment comes to light.

What is a mixed act (acte mixte)?

A mixed act is a sale that is commercial for one party and civil for the other, typically a sale by a business to a private individual. Each party is broadly judged by the rules of its own side: the trader is held to the commercial regime, while the private party keeps civil-law protections, including the stricter rules on proving the contract.

How do I prove a commercial sale?

Against a trader, a commercial act may in principle be proved by any means, including invoices, purchase orders, delivery notes, emails and correspondence. This freedom of evidence contrasts with civil law, where a signed writing is generally required above a modest value. Keeping a complete transaction file is the best way to secure the benefit of this rule.

Does the Civil Code still apply to a commercial sale?

Yes. The general law of sale in the Civil Code, starting with the definition in Article 1582, applies to every sale. The commercial rules do not replace it but add to it, layering the commercial court, freedom of evidence, the presumption of solidarity and the five-year commercial limitation on top of the ordinary civil law of sale.

Key takeaways on civil vs commercial sales in France

How our French lawyers help with civil and commercial sales

Petroff Avocats advises both sellers into France and buyers from France on where a sale falls in the Civil Code vs Commercial Code France analysis and what follows from it. For sellers, we structure terms and evidence so that a commercial sale can be enforced quickly before the right court and within the limitation period; for buyers, we assess whether the commercial regime, a mixed-act split or consumer protections apply, and how to defend or bring a claim. Whether you are drafting general terms and conditions, chasing an unpaid commercial invoice, or facing a dispute over defective or non-conforming goods, we identify the applicable regime early and act on it.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. The characterisation of a sale as civil or commercial depends on the facts of each transaction. Contact our French lawyers for advice on your situation.