Lexicon > Agreement

IP Lexicon


An agreement is a contract between two or more parties who have reciprocal obligations to each other.

In any case, the act concluded has a binding force between the Parties which results from article 1103 of the Civil Code according to which: ” Agreements legally formed take the place of law to those who have made them.

This principle must be combined with the principle of contractual freedom and the principle that establishes an obligation of good faith in the negotiation, formation and performance of the agreement as a matter of public policy.

Article 1128 of the Civil Code imposes three cumulative conditions for the validity of an agreement : the consent of the parties, their capacity to contract and a lawful and certain content.

All these conditions must be met on the day the agreement is concluded, on pain of nullity.

Indeed, in French law, the nullity of the agreement can be invoked for defect of the consent, being able to result from :

  • A mistake: this is a discrepancy between the errant’s belief and the reality concerning the essential qualities of the agreement expressly or tacitly agreed by the parties;
  • Violence: when a party commits himself under the pressure of a physical, economic, moral or pecuniary constraint;
  • Fraud: consisting of one party obtaining the consent of the other by manoeuvres, lies, or intentional concealment of information which he knows to be decisive for his co-contractor.

In order to guarantee the proper execution of the agreement (respect of the commitments of the Parties) and to be able to take legal action in case of non-execution, its clauses must be drafted in a clear and precise manner and the information contained therein must be accurate.

Most often, contracts are in writing.

In fact, an agreement that is not in writing, that is drafted in an imprecise manner, or that contains erroneous information, may be more easily challenged in the event of a dispute, and will be interpreted by the judge in light of the parties’ wishes.

Such a situation would therefore place the co-contractors in a situation of legal uncertainty.

Moreover, the co-contractors must also be careful about the drafting of contractual clauses.

For example, with respect to liability waiver clauses, article 1170 of the Civil Code limits the principle of autonomy of agreements in order to reinforce the legal certainty of the parties and provides that “any clause which deprives the essential obligation of the debtor of its substance shall be deemed unwritten”.

Thus, it is not possible for a party to provide in the agreement for a derisory amount of damages to be paid to its co-contractor if it does not perform its undertaking.

Clauses that have the object or effect of creating a significant imbalance between the rights and obligations of the parties to the agreement are also prohibited.

Agreement are very common, both in our daily lives and in business life.

In the field of intellectual property, agreements often concern the transfer of rights or the licensing of industrial property rights, and most of them must be in writing, otherwise they will be null and void.

In France, each type of agreement has its own formalities (for example, the validity of a franchise agreement will not meet the same requirements as those required for licensing or assignment of intellectual property rights – see trademark license, copyright license, trademark assignment and copyright assignment).

What is essential in contractual matters is that the agreement perfectly reflects the real situation of the parties and their intentions, and that each of the parties fully understands the obligations incumbent upon him before signing it.

In fact, a agreement is concluded for a defined period of time and in theory it is not possible to leave it other than by respecting the conditions of exit provided for therein.

Consequence of the cancellation of a non-distinctive trademark on agreements

The Court of Cassation has ruled that a decision to cancel a trademark has erga omnes effect, i.e. it applies to everyone, even if the decision is made in the context of a counterclaim:

“In the case of a request for cancellation of a trademark on the grounds of lack of distinctiveness, even if it was filed as a defense to an infringement action, judges who consider this cause of invalidity to be established can only render a decision of invalidity having effect for all and not merely a decision to reject the infringement action brought against the applicant for invalidity. ” (Cass. com., Oct. 13, 2021, n°18-11.805).

Under these conditions, the annulment is likely to have a retroactive effect and all related acts, such as licenses, would be annulled as a consequence.

Update on the Ordinance of February 10, 2016 reforming the law of contracts, the general regime and the proof of obligations

Under Article 9 of the Ordinance of February 10, 2016, and Article 16, I of its Ratification Act of April 20, 2018, the new provisions of the Civil Code, as eventually interpreted by the Ratification Act, are applicable to acts and legal facts occurring as of October 1, 2016.

As for the substantive changes made by the Ratification Act, they are only applicable to agreements entered into on or after October 1st, 2018.

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