Tortious Liability of Contracting Parties Toward Third Parties: Contractual Clauses Enforceable Against Third Parties

While French case law has already established that a third party to a contract may invoke a breach of contract to obtain compensation for its loss, the French High Court (Court of Cassation) clarified in a recent decision which contractual clauses may be enforceable against said third party.

PRINCIPLE: A THIRD PARTY WHO SUFFERED A LOSS MAY INVOKE A BREACH OF CONTRACT

Nearly 20 years ago, in a landmark decision that sparked a saga of case law which continues to be fueled to this day, the Plenary Assembly of the French High Court stated that a third party to a contract can hold the breaching party liable on the grounds of torts, provided that such breach caused a loss to the third party. [1]

The nature of the contractual obligation has no influence: whether the breaching party undertook an obligation of means or an obligation of result, the mere breach is sufficient to establish a tort, without it being necessary to prove a separate fault. [2] However, under Article 1240 of the French Civil Code, the victim bears the burden to prove the damage and the causal link, in addition to the tort.

FIRST CASE LAW EXCEPTION: THE ENFORCEABILITY OF LIMITATION OF LIABILITY CLAUSES AGAINST A THIRD-PARTY

The French High Court specified that a third party invoking this principle to obtain compensation "shall be subject to the conditions and limits of liability applicable in the relations between the contracting parties." [3]

In the Court's view, this solution was necessary "in order not to frustrate the expectations of the debtor, who entered into the contract in consideration of its overall structure (“économie générale du contrat”), and not to place the third party invoking the contract in a more advantageous position than that held by the creditor itself."

Thus, in this case, the debtor, who was a party to the contract and liable for the damage, was able to invoke the limitation of liability clause stipulated in the contract against the third party.

However, it should be noted that the damage suffered was damage to property: such solution remains inapplicable in the event of bodily injury, pursuant to the principle of full compensation. Similarly, in the event of gross negligence or willful misconduct, both the third party and the other party should be able to invoke Article 1231-3 of the French Civil Code, which neutralizes limitation of liability clauses.

NEW CASE LAW EXCEPTION RELATING TO THE ENFORCEABILITY OF OTHER CLAUSES AGAINST THIRD PARTIES

In a December 17, 2025 ruling, the Commercial Chamber of the French High Court confirmed that other contractual clauses may also be enforced against third parties claiming damages, in addition to limitation of liability clauses. [4]

In this case, the Court specified that the breaching party could invoke:

• a foreclosure clause;
• a clause modifying the statute of limitations; and
• a clause requiring a prior amicable settlement attempt before any claim.

Failure to comply with these clauses allows for the dismissal of the third party’s tortious claim.

The Commercial Chamber once again justified this position in the name of preserving the overall structure of the contract (“économie générale du contrat”), to protect the economic stability - which is certainly commendable from a commercial point of view, but potentially detrimental to the victims’ right to take legal action. Furthermore, a question then arises as to whether these clauses are enforceable against third parties who were legitimately unaware of the content of the contract when filing their claims.

Law clerk Lizy Kim contributed to this LawFlash.