Contractual freedom - Article 1102 of the French Civil Code
Objective: Understand the limits of contractual freedom and the mandatory public policy rules that buyers cannot circumvent.
French law establishes broad contractual freedom: parties are free to determine the content and form of their contracts, provided they comply with mandatory public policy rules.
What this means in practice for the buyer:
- ✅ Free negotiation of clauses (price, deadlines, penalties, warranties)
- ✅ Freedom of form (oral or written contract, but written contracts are strongly recommended)
- ❌ Cannot derogate from mandatory public policy rules (e.g., maximum 60-day payment terms, data protection)
- ❌ Cannot include clauses creating a "significant imbalance" to the detriment of the other party
📋 Sample clause - Contractual freedom
"This Contract is entered into between the Parties under the contractual freedom provided for in Article 1102 of the French Civil Code. The Parties declare that they have freely negotiated all the terms set out herein."
⚠️ Warning: Contractual freedom is not absolute. Any clause that excessively benefits one party to the detriment of the other may be challenged before the Commercial Court for "significant imbalance" (Art. L442-1 of the French Commercial Code).