The difficult waiver of compensation for the principal's losses
The Paris Court of Appeal is not satisfied with a waiver clause.
The Paris 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-management, for other products. The agreement was subsequently terminated by Eni. The co-contractor then claimed compensation for the losses suffered in connection with the execution of the mandate.
For the record, the Civil Code, through its article 2000, establishes that the principal must compensate the agent for the losses it has suffered during its management, provided that these 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 mandate. Article 1999 of the Civil Code lays down the same principle for the reimbursement of expenses incurred on the occasion of the mandate.
A waiver of compensation to be strictly regulated
He has been admitted for a long time (Com 17 Dec. 1991, No.89-21.356) the possibility of waiving the benefit of these clauses, provided that the waiver is unequivocal and made in full knowledge of the facts. This resulted, for example, in refusing to apply the waiver on the sole ground that the mandate contract 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 the remuneration derived from all the activities, both under the mandate and the lease-management, should be considered in their entirety and that the station operator 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, the judges make a correlation between the waiver of compensation for losses at the risks that the principal must bear. The case law thus refuses to make the agent bear, by 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 agency contracts, 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)
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