We sign a quote, we send an email with the mention “approved,” we check a box online. Each of these actions relies on a mechanism that Article 1113 of the Civil Code establishes in two paragraphs: the contract is formed by the meeting of an offer and an acceptance. Behind this sober formulation lies the entire mechanism of contract formation, with direct consequences on the validity of a commitment.
Offer and acceptance: what Article 1113 has concretely changed since 2016
Before the ordinance of February 10, 2016 (effective October 1, 2016), the Civil Code did not explicitly define the process of meeting wills. It relied on jurisprudence and doctrine. Article 1113 codified what the courts were already applying, but with a practical consequence: any dispute regarding the formation of a contract is now measured against this text.
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The article states that the contract is formed by the meeting of an offer and an acceptance “by which the parties express their intention to engage.” The second paragraph specifies that this intention can be expressed either explicitly or tacitly. For a detailed explanation of Article 1113 of the Civil Code, the text remains the direct reference.
In practice, three operational elements are retained:
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- The offer must be sufficiently precise and firm to bind the one who makes it, which Article 1114 complements by defining the contours of this precision.
- The acceptance must relate to the elements contained in the offer, without substantial modification, under penalty of constituting a counter-offer.
- The intention can be tacit: a behavior (such as starting to perform a service, for example) can constitute acceptance, provided that the context leaves no doubt.
Tacit acceptance and the silence of the recipient: the most common trap
The most slippery contentious area surrounding Article 1113 concerns the proof of acceptance. The text opens the door to tacit acceptance, but the courts remain demanding on this point.
The Court of Cassation, in a ruling from the commercial chamber on February 8, 2023, reiterated a clear principle: the acceptance of a clause cannot be inferred from the mere execution of the contract nor from the issuance of an invoice. In this case, a co-contractor contested a stipulation regarding the place of delivery. The documents he had signed did not refer to this clause. The Court overturned the appellate ruling that had upheld tacit acceptance.
This decision illustrates a daily reality in commercial relationships. An order form is sent with general conditions on the back. The recipient does not contest them and begins to execute. Does this constitute acceptance of all the clauses? The answer is no, at least not automatically.
What judges concretely verify
The judges’ reasoning follows a precise pattern. First, it is examined whether the recipient of the offer had effective knowledge of the terms being opposed to them. An unsigned, uninitialed document not referenced in the main contract does not bind.
Next, it is verified whether the recipient’s behavior reflects an unequivocal intention. Silence does not constitute acceptance under French law, except in the limited cases provided (previous business relationships, professional usages).
For quotes signed with the mention “approved,” the situation is simpler: the signature constitutes an express manifestation of intention. Responses vary more when the agreement is made through an exchange of emails without formal signature, which leads more and more professionals to secure electronic proof of acceptance.
Interaction between Article 1113 and Articles 1114 to 1122 of the Civil Code
Article 1113 does not function alone. It opens the subsection on the conclusion of the contract, and the following articles detail each component. Understanding this interaction avoids misinterpretations.
Article 1114 defines the offer as the manifestation of the author’s intention to be bound in case of acceptance, provided it includes the essential elements of the contemplated contract. In practice, a commercial proposal that does not mention either the price or the specific object of the service does not constitute an offer in the legal sense. It is merely an invitation to enter into negotiations.
Article 1115 deals with the retraction of the offer: it can be withdrawn as long as it has not reached the recipient. Once received, a reasonable period applies before any retraction, unless a specific reflection period has been set.
The question of timing and receipt
The exact moment when the contract is formed has consequences for the obligations of the parties. Article 1121 favors the theory of receipt: the contract is concluded as soon as the acceptance reaches the author of the offer. Not at the moment of sending, not at the moment of effective knowledge, but upon receipt.
This rule has a direct impact on exchanges by mail, email, or digital platform. An acceptance email sent at 11:59 PM on the last day of the deadline forms the contract as soon as it arrives on the recipient’s server, even if they only read it the next day.
Forming a valid contract: concrete points of vigilance
Beyond the text, the formation of the contract according to Article 1113 requires meeting conditions that are often overlooked in everyday practice.
- Ensure that the offer contains all essential elements: object, price (or means of determining it), execution conditions. An incomplete offer does not bind anyone.
- Document the acceptance: physical signature, qualified electronic signature, confirmation email reiterating the terms of the offer. The “oral yes” exists in law, but its proof is fragile.
- Distinguish negotiation from firm offer: as long as modified proposals are exchanged, we are negotiating. The contract is only formed upon the pure and simple acceptance of the last offer made.
The 2016 reform did not invent these principles. It made them readable in the Civil Code, which facilitates their application by practitioners as well as judges. Article 1113 remains the entry point for any analysis on the formation of a contract, but it is by reading it alongside Articles 1114 to 1122 that one obtains a complete picture of the mechanism of meeting wills.