Commercial law governs two inseparable subjects: the commercial acts and the profession of retailer. As a branch of private law, it has historically been set up as an exception to civil law, tailored to the requirements of trade: speed of execution, security of credit, simplicity of proof. The Commercial Code of 2000, heir to the Napoleonic Code of 1807, remains its cornerstone.
This specificity is not just a historical curiosity. Even today, it determines which court has jurisdiction, the rules of evidence, the limitation period and the presumption of joint and several liability between co-debtors. To understand commercial law is to understand why a dispute between two companies is not treated in the same way as a dispute between neighbours - and why confusing the two systems is often costly.
A special branch of private law
Commercial law belongs to private law, like civil law from which it derives. But it is a special branch of private law, governed by its own logic and applied by its own courts. Authors traditionally speak of «exceptional law»: not in the sense of extraordinary legislation, but in the sense of a law that derogates from ordinary law when the commercial nature of a transaction so requires.
The purpose of commercial law can be defined simply: it governs economic activities carried out professionally, for consideration and with a view to making a profit. This definition covers trade in the strict sense - buying to sell - but also industry, services, banking, transport and intermediation. Everything that comes under the heading of commercial enterprise, with the notable exception of agriculture, the professions and craft trades (although the latter have been partially brought under commercial law since 2022).
The cohabitation with civil law is not watertight. The reform of the law of obligations resulting from the Order of 10 February 2016 has homogenised part of the system of contracts, erasing certain differences. But the core of derogations remains: proof, prescription, jurisdiction, joint and several liability and anatocism. It is this core that justifies, even today, a lawyer specialising in this area.
Commercial acts, the basis of the system
All commercial law is based on the concept of the commercial transaction. Neither the trader nor the commercial court would exist without it: it is the habitual performance of commercial acts that confers the status of trader, and it is the commercial nature of an act that determines the competent court. Article L. 110-1 of the French Commercial Code sets out the list, inherited almost word for word from the Napoleonic Code.
«The law deems acts of commerce :
1° Any purchase of movable property for the purpose of resale, either in kind or after having been worked on and used; ;
2° Any purchase of immovable property for the purpose of resale, unless the purchaser has acted with a view to erecting one or more buildings and selling them en bloc or by premises ;
3° All intermediary transactions for the purchase, subscription or sale of property, business assets, shares or units in property companies; ;
4° Any furniture rental business; ;
5° Any manufacturing, commission, land or water transport business; ;
6° Any supply company, agency, business office, auction house or public show; ;
7° Any foreign exchange transactions, banking, brokerage, electronic money issuing and management activities and any payment services; ;
8° All public banking operations; ;
9° All obligations between traders, merchants and bankers; ;
10° Bills of exchange between all persons.»
Legal doctrine and case law have added two other categories to this list. The commercial acts by form are commercial by virtue of their legal form, regardless of their purpose or the status of their authors: a bill of exchange is commercial even if it is drawn by a private individual on another private individual; commercial companies by virtue of their form (SARL, SAS, SA, SNC, SCS) carry out commercial acts by virtue of their status alone. The incidental commercial acts, These are civil acts that become commercial in nature because they are carried out by a trader for the needs of his business - a bank loan taken out to finance stock, for example.
Finally, there is the most tricky category: the’mixed act. When an act is commercial for one party and civil for the other - typically a sale by a trader to a private individual - its regime becomes hybrid. The non-trading party has an option: he can sue in the civil court or the commercial court, and invoke freedom of evidence against the trading party. The trader, on the other hand, cannot invoke the derogatory rules of commercial law against his non-trading co-contractor. Ignoring this asymmetry is one of the most common errors in practice.
Retailers, key players
While the act of trading is the objective basis of commercial law, the trader is its subject. The legal definition can be summed up in a single line, but it conditions the entire applicable regime.
«Traders are those who carry out commercial acts and make it their habitual profession to do so.»
Three cumulative criteria. First criterion: the’performance of commercial acts, within the meaning of article L. 110-1. Second criterion: the profession, The second criterion is that the activity is carried out on a principal and lucrative basis, with a view to making a profit and not simply for the sake of convenience. Third criterion: the’habit, This presupposes sufficient repetition to characterise a regular activity - an isolated act, even an important one, is not enough. Case law adds the requirement of an activity carried out on one's own account and independently, which excludes the employee.
This legal definition applies to individual traders. For companies, the mechanism is different: commercial companies by form acquire the status of trader under article L. 210-1, regardless of their real purpose. An SARL set up to manage property assets is a trader under the law, even if its activity is purely civil. Conversely, a civil partnership is never a trader, even if it performs commercial acts.
The Act of 14 February 2022 radically changed the status of sole traders: since 15 May 2022, their business assets have been automatically separated from their personal assets, without any formalities or declaration. This automatic protection replaces the previous EIRL mechanism and is one of the most significant developments in recent commercial law. To understand the consequences for creditors' guarantees, see our guide to securities and guarantees.
Civil law and commercial law: five differences in regime
The exceptional nature of commercial law can be seen in five specific areas. These differences are not anecdotal: they often determine the outcome of a dispute.
| Criteria | Civil law | Commercial law |
|---|---|---|
| Proof | Written form required for amounts over €1,500 (art. 1359 C. civ.) | Freedom of evidence between traders (art. L. 110-3 C. com.) - invoices, e-mails, business books admitted without hierarchy |
| Prescription | 5 years under ordinary law (art. 2224 C. civ.) | 5 years (art. L. 110-4 C. com.), with the possibility of an extended agreement between traders (art. 2254 C. civ.) |
| Jurisdiction | Court of First Instance | Commercial court (art. L. 721-3 C. com.) |
| Solidarity between co-debtors | Not presumed (art. 1310 C. civ.) - must be expressly stipulated | Presumed by case law since Cass. req. 20 October 1920 |
| Formal notice | Strict formalities, interest on arrears from the date of formal notice | More flexible; interest can accrue automatically in accordance with commercial practice |
The practical consequences are far-reaching. A trader who claims payment of an unpaid invoice from another trader does not have to produce a written contract: an order form, an exchange of e-mails or an accepted invoice are all valid proof. When dealing with a private individual, on the other hand, the same trader is bound by the civil rules of evidence - and a dispute worth a few thousand euros may be lost for want of a written document. This asymmetry justifies particular vigilance in the drafting of general terms and conditions and the traceability of exchanges.
The commercial court, the natural judge for traders
The Commercial Court is a special court made up of consular judges elected from among traders. It hears, at first instance, disputes between traders, disputes relating to commercial companies and commercial transactions between all persons. Its jurisdiction is defined exhaustively by the Commercial Code.
«Commercial courts have jurisdiction over :
1° Disputes relating to commitments between merchants, craftsmen, credit institutions, finance companies or between them ;
2° Those relating to commercial companies; ;
3° those relating to commercial transactions between all persons.»
The extension to craft workers, which came into force on 1er On 1 January 2022, a long-standing debate came to an end: craftspeople, who until then had been subject to the jurisdiction of the courts, will now be subject to the jurisdiction of the commercial courts for their professional disputes. This unification brings the status of craftspeople even closer to that of commercial entrepreneurs, without confusing the two - craftspeople are still subject to their own tax and social security regime, and are not required to register with the Trade and Companies Registry.
The most recent innovation is the testing of the business court (TAE), launched on 1er On 1 January 2025, this will be extended to twelve commercial courts. The TAE will extend consular jurisdiction to cover insolvency proceedings instituted against self-employed professionals, farmers and associations engaged in economic activity. This experiment, scheduled to run for four years, may well herald a more ambitious overhaul of French economic justice.
For details of how to enforce decisions, see our guide to enforcement procedures. For the consequences of suspension of payments, see our guide to insolvency proceedings.
The six areas of commercial law dealt with by the firm
Commercial law is a vast field. Solent Avocats focuses on six areas that account for the bulk of litigation between companies and within commercial enterprises. Each is the subject of a dedicated guide.
| Domain | Practical issues | Guide |
|---|---|---|
| Commercial lease | Public policy protecting the lessee: right to renewal, eviction compensation, triennial review, despecialisation, etc. | Commercial leases |
| Business assets | Assignment, pledge, management lease - the legal backbone of a commercial enterprise | The business |
| Commercial paper | Bills of exchange, promissory notes, cheques - payment and credit instruments governed by specific exchange law | Commercial paper |
| Bill of exchange | Commercial deed by form, enforceability against signatories, recours cambiaire, protêt | Bills of exchange |
| Franchise contract | Pre-contractual information (Doubin law, art. L. 330-3), balance of obligations, leaving the network | The franchise contract |
| Unfair competition | Denigration, imitation, disorganisation, parasitism - liability in tort (1240 C. civ.) and action for cessation | Unfair competition |
Recent developments (2022-2026)
Over the last four years, commercial law has undergone three major changes that need to be borne in mind when devising a litigation or contractual strategy.
La law of 14 february 2022 in favour of self-employed professional activity abolished the EIRL status and introduced automatic separation of the business and personal assets of the sole trader. In practical terms, since 15 May 2022, the professional creditors of a sole trader can no longer, barring a few exceptions, seize their debtor's personal assets. This protection has become the default status, with no formalities or declaration required. This changes the strategy of creditors, who must now secure their claims by means of contractual sureties or personal guarantees - an analysis developed in our guide to securities and guarantees.
L'extending the jurisdiction of the commercial court to tradesmen, in force since 1er On 1 January 2022, the new law unified professional litigation for sole traders. This extension simplifies the work of the lawyer, who no longer has to consider which court has jurisdiction when his client, a craftsman, is in dispute with a supplier or a professional client.
L'trial of the tribunal for economic activities, opened on 1er On 1 January 2025, in twelve pilot jurisdictions, consular jurisdiction will be extended to cover insolvency proceedings involving the liberal professions, farmers and associations. This experiment is scheduled to run for four years, at the end of which the legislature will decide whether to extend it to all jurisdictions. For Marseille, a jurisdiction that has not yet been integrated, the Commercial Court will retain its traditional jurisdiction.
In addition to these structural developments, the Commercial Chamber of the Cour de cassation has developed a dense body of case law on the brutal termination of established commercial relationships (art. L. 442-1 C. com.), the leading case of which, Cass. com. 8 November 2017, no. 16-15.285, set out the criteria for assessing reasonable notice. This subject is constantly evolving and warrants regular legal monitoring.
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