The difficult waiver of compensation for the principal's losses

TheParis Court of Appeal is not satisfied with a waiver clause.

Waiver of indemnification under a mandate

Eni France has entered into an agreement for the operation of a service station. The agreement included, as often for agreements relating to the operation of service stations, both a mandate, for the distribution of petroleum products, and a lease-managementother products. The agreement was subsequently terminated by Eni. The co-contractor then requested thecompensation for losses incurred in connection with the execution of the mandate.

For the record, the Civil Code, through its article 2000, establishes that the principal must indemnify the agent for losses that it has suffered in the course of its management, provided that such losses are not due to recklessness on the part of the agent. This principle aims to protect the agent by ensuring compensation for losses incurred in the execution of his job . Article 1999 of the Civil Code lays down the same principle for the reimbursement of expenses incurred on the occasion of mandate.

A waiver of compensation to be strictly regulated

It has long been accepted (Com 17 Dec. 1991, No.89-21.356) the possibility of waiving the benefit of these clauses, provided that the waiver is unequivocal and carried out with full knowledge of the facts. This resulted, for example, in refusing to apply the waiver on the sole ground that the mandate agreement provided for a lump sum remuneration and implies having particularly explicit clauses, reproducing the articles to which the agent waives.

In this case, the agreement concluded provided that it was necessary to consider the remuneration derived from all the activities, both under the mandate as of the lease-management, in their entirety and that the operator of the station waived the benefit of Articles 1999 and 2000 of the Civil Code.

Indemnity waiver: An invalid clause in case of ambiguity

The Court of Appeal, following the court of first instance, considered that there were contradictions between this waiver clause and other clauses of the contract that distinguished the two remuneration. This contradiction, in the case of a membership contract, must benefit the agent in accordance with Article 1190 of the Civil Code.

In addition, as principal, Eni “kept control of the fuel sales activity, its expenses and revenues”. However, judges make a correlation between the waiver ofcompensation for losses the risks that the principal must bear. The case law thus refuses to make the representative bear, depriving him of his right to compensation, a risk related to an element under the control of the principal, which is confirmed by this judgment.

It is therefore essential, in the event of the introduction of such a waiver clause in contracts, to job , not only to make them particularly clear and explicit, but also to ensure the consistency of the contract with this principle, by not thereby bearing the risks associated with decisions that are the sole responsibility of the principal.

(Paris CA, January 8, 2025, No.23/01060)