Third-party claims for breach of contract under French law: An unwieldy attempt to close Pandora’s box

Introduction

In 2006, the French Cassation Court, sitting in Full Court, opened Pandora’s box in deciding that a third party to a contract can invoke a breach of contract on its own to found a claim in tort against a contracting party.¹ Pursuant to this decision, third parties do not need to show a tortious act or omission distinct from a contractual breach. To succeed in such a claim, third parties must establish that a contractual breach caused them loss and damage.
 
This tortious liability regime established in 2006 in the Boot Shop case was confirmed in the same terms in 2020 by another Full Court decision of the French Cassation Court in the Bois Rouge case.

This line of case law has put third parties in a better position than the contracting parties as the former can rely on contractual terms to allege an actionable tortious event without otherwise being bound by the contractual terms.

Despite being almost 20 years old, this tortious liability regime has remained controversial and much debated with several courts, including the Commercial Chamber of the Supreme Court itself, seeking to find ways to limit its broad reach.

In July 2024, in the Clamageran case, the Commercial Chamber of the French Cassation Court sought to partially close Pandora’s box and decided that the contractual “conditions and limits of liability” were enforceable against the third party claiming under a breach of contract.²  The objective of this decision was expressly to put an end to the very favorable situation enjoyed by third parties under French law. However, this decision has created even more uncertainty and debate as to how this tortious regime should apply. We refer to our comments on the Clamageran case published in the LMCLQ annual yearbook.³

In a recent decision issued in December 2025, the same Commercial Chamber had the opportunity to apply the Clamageran solution. It held that contractual clauses relating to forfeiture of right (forclusion), time-bar, and mandatory pre-litigation conciliation are enforceable against a third party claiming in tort based on a breach of contract.⁴

The December 2025 decision

In this case, a company called Vigi Protect Security (VPS) had entrusted its accounting to an accounting firm, France comptabilité. VPS subsequently became subject to a tax reassessment, which also resulted in a personal tax reassessment for its manager, Mr. S. Claiming that France comptabilité had breached its contractual obligations, both VPS (in contract) and its manager (in tort) commenced a court action against the accounting firm. 

France comptabilité sought to invoke several contractual provisions contained in its engagement letter with VPS against the manager’s tort claim, including: (i) a forfeiture of right clause; (ii) a clause modifying the time-bar period; and (iii) a clause requiring pre-litigation attempt to conciliate. The Court of Appeal rejected these defenses, holding that these contractual clauses were not enforceable against the manager, as he had not personally signed the engagement letter.

The Commercial Chamber of the French Cassation Court quashed the Court of Appeal’s decision holding that:

It results from this text that the third party to a contract who invokes, on the basis of tortious liability, a contractual breach which has caused him a loss, may be held to the conditions and limits of liability which apply in the relations between the contracting parties.

The Commercial Chamber concluded that the Court of Appeal had violated this principle by refusing to apply the forfeiture, time-bar, and conciliation clauses to the manager, even though he was invoking the contractual breach as the basis for a tortious claim.

Comments

A positive limitation on the Boot Shop Principle

The 2024 Clamageran and 2025 decisions represent a welcome limitation to the liability of contracting parties toward third parties. The Commercial Chamber has introduced a limiting principle designed to avoid placing the third party in a more favorable position than the contracting party itself. From a practical standpoint, this solution seeks to preserve the contractual equilibrium that the parties originally negotiated.

One may argue that the 2025 decision goes even beyond the principle set out in the Clamageran case. The forfeiture of right, time-bar, and conciliation clauses that are at the heart of the 2025 decision affect the exercise of the right to claim, rather than being conditions and limits of liability, referred to in the Clamageran case.

Questions raised by these decisions

In our comments on the Clamageran case, we identified a list of issues that render this new approach particularly unwieldy.⁵ The 2025 decision has expressly applied the Clamageran case law to forfeiture, time-bar, and conciliation clauses, but leaves a number of important questions unanswered, notably:

• What types of clauses are enforceable against third parties? The December 2025 provides some clarification but the distinction between clauses relating to the “conditions and limits of liability” and other contractual provisions remains unclear.
• Are jurisdiction clauses enforceable against the third party? The December 2025 decision suggests that the answer may be nuanced. The Court found that a conciliation clause may be invoked against the third party. There may be a distinction to make between a jurisdiction clause and agreed out-of-court dispute resolution mechanisms.
• Are arbitration clauses enforceable against the third party? This question remains open, though commentators have noted potential difficulties given that such clauses require acceptance by the party against whom enforcement is sought.
• How are liquidated damages to be apportioned between the third-party claimant and the intended contractual recipient? This question has very practical implications and will need to be addressed by the courts.
• What is the situation for protected third parties? The decisions do not address what happens when the third party enjoys special protection, for example, as a consumer. When the third party would benefit from mandatory protections or where public policy considerations apply, the enforceability of contractual clauses may encounter limits. This is an area where further clarification is required.
• Are limitation clauses specifically directed at third-party claims for breach of contract valid? Under established French case law, limitation clauses seeking to limit or exclude tortious liability are null and void. Pursuant to the Clamageran decision, contractual limits of liability are enforceable against third parties acting in tort. The contractual limits applied by Clamageran are not directed at tortious liability, but are provided between contractual parties and made enforceable against third parties claiming under the contract in tort. For the Cassation Court, there seems to be no incompatibility between the prohibition on excluding or limiting tort claims and making inter partes contractual limits enforceable against third parties bringing blame in tort. The same may not be said about contractual limits provided expressly at tortious liability vis-à-vis third parties.
• Can a third party show as an alternative a breach of the duty of care, severable from the contractual breach, to avoid the application of the contractual limits of liability? In our view, the Boot Shop jurisprudence should not prevent a third party from showing that a contracting party has breached the general duty of care, with or without a breach of contract, causing loss to that third party. In this scenario, the application of the contractual limits of liability would seem unjustified.

Judicial intervention in the absence of legislative reform

In 2017, a draft bill was proposed by the Ministry of Justice to reform French law on civil liability. The draft reform addressed, and sought to limit, the liability of contracting parties toward third parties. Another draft was presented by the French Senate.

To date, French law on civil liability has not been reformed and is not currently a parliamentary priority.

In this legislative vacuum, the Commercial Chamber appears to have concluded that judicial intervention was necessary to restore balance to this area of law. This is not the first time the Commercial Chamber has sought to circumvent or nuance the broad principle established and re-stated by the Full Court in recent times.

Given the significance of these developments and the ongoing doctrinal debate, it would be beneficial for the Full Court of the Cassation Court to re-confirm (or not) its original broad but simple approach. Returning to the pre-Boot Shop approach may be sensible. Under that approach, third-party claimants were required to show an independent breach of the duty of care by the contracting parties that caused their loss.

1. Cass, Ass. Plén., 6 October 2006, n°05-13.255 ; Breach of contract as the basis for third-party claims in tort: A French affair with cross-border implications, Andrew Tetley, L.M.C.L.Q. [2013],p.199.2. Cass. Com, 3 July 2024, n° 21-14.947.3. Itas Mutua v. Clamageran Andrew Tetley and Antoine Guillemot,  L.M.C.L.Q. [2025],p.129-132.4. Cass. Com, 17 December 2025, n° 24-20.154.5. Itas Mutua v. Clamageran Andrew Tetley and Antoine Guillemot,  L.M.C.L.Q. [2025],p.129-132.

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