France: New rules on contracts
One of the significant changes is the codification of the pre-contractual phase, which must be conducted in good faith. However, the ordinance introduces a general duty to provide, before the conclusion of the contract, any information which is critical and has a direct link with the content of the contract or the parties. Failure to respect this obligation triggers not only the liability of the contracting party, but also the possible invalidation of the contract for lack of consent. This duty does not apply to estimating the value of what is delivered.
The burden of proof is on the party who claims that certain information should have been revealed by the other, who in turn must prove that this information was in fact supplied.
One provision of general importance, but particularly so in the intellectual property field, provides for the confidentiality of all information obtained during the pre-contractual phase. This provision does not impose an obligation to sign a confidentiality agreement. It does remain preferable, however, especially in the interests of evidence, that such an agreement is put into writing and signed by the parties, specifying the information that must remain confidential.
The conditions of contractual validity are the consent of the parties, their capacity and the legality of the content of the agreement. The reasons for consent to be invalidated, ie, because of error, fraud or violence, remain relative grounds for invalidity.
