Jurisdiction clause: when the competent court is imposed without your consent

You have just signed a transport contract to have materials delivered to your building site in Pontoise. The parcel never arrives. You want to sue the carrier before the court in Pontoise, but the contract stipulates that all disputes fall under the jurisdiction of the Paris court. Have you really accepted this clause? The answer is no, if you had no knowledge of it and did not accept it at the time the contract was formed.

This question arises every day for thousands of owners, tenants and real estate professionals: can a clause drafted in small print in an insurance, lease or transport contract impose a court at the other end of France on you? The French Supreme Court, in a judgment of 26 May 1992, ruled: a jurisdiction clause is only binding on a party who had knowledge of it and accepted it at the time the contract was formed.

This decision, rendered in the context of inland waterway transport on the Rhine, has repercussions far beyond transport. It protects any person who is confronted with a clause they have not personally accepted. Analysis.

The facts: a story that happens every day

Imagine: the company De Grave, a shipper, entrusts goods to an inland waterway carrier to transport them from Rotterdam to Strasbourg. The transport contract contains a jurisdiction clause: in the event of a dispute, only the Paris courts have jurisdiction. The goods arrive at their destination, but the consignee – a third party who did not sign the contract – notices damage. He sues the carrier and its insurer before the Strasbourg court, his place of receipt.

The carrier and its insurer raise the territorial incompetence of the Strasbourg court: according to them, the jurisdiction clause binds the consignee because he succeeded to the shipper's rights and obligations. The consignee retorts that he never accepted this clause, that he had no knowledge of it at the time the contract was formed.

The Court of Appeal rules in favour of the consignee: the clause is not binding. The carrier appeals to the Supreme Court. The Supreme Court, on 26 May 1992, dismisses the appeal and confirms: a jurisdiction clause is only binding on a party who had knowledge of it and accepted it at the time the contract was formed. The consignee, a third party to the contract, is not bound.

The reasoning of the court — analysed

The Supreme Court relies on a fundamental principle of contract law: no one can be bound without their consent (Article 1101 of the Civil Code, then in force). The jurisdiction clause is a clause that derogates from the legal rules of territorial jurisdiction (Articles 42 and 46 of the Code of Civil Procedure). It must therefore be accepted expressly and unequivocally.

In this case, the consignee was not a party to the initial contract between the shipper and the carrier. He was not informed of the existence of the clause at the time the contract was formed. The fact that he succeeded to the shipper's rights (by receiving the goods) does not mean that he accepted the contractual obligations, particularly the jurisdiction clause. The Court recalls that the enforceability of the clause requires personal knowledge and acceptance.

This reasoning is consistent: the highest court requires that the clause be brought to the attention of the party against whom it is invoked, and that that party accepted it. It is not enough that it is written in a contract between other persons. This is a protection against surprise clauses, often buried in illegible general conditions.

What this means for you — practically

For landlord owners: if you sign a property management contract with an agency, and that contract contains a jurisdiction clause in favour of the Paris court, you are not bound if the agency invokes it against you while you had no knowledge of it at the time of signing. Example: you live in Pontoise, the agency is in Paris, but the contract is signed by email without the clause being specifically brought to your attention. You can sue the agency before the Pontoise court.

For tenants: your lease contains a clause stating that any dispute will be brought before the court of the location of the property (this is legal) but if the landlord invokes a different clause against you (e.g. the court of his home in Paris while the property is in Pontoise), you are not obliged to accept it if you did not expressly accept it.

For buyers: in a promise to sell, if the notary includes a jurisdiction clause in favour of the Paris court, you can challenge it if it was not brought to your attention in a clear and unambiguous manner. A concrete example: you buy an apartment in Paris, the preliminary contract is signed before a notary in Paris, the clause is in the general conditions. You will not easily be able to challenge it. But if the buyer is in Marseille and the seller in Paris, and the clause is not specifically highlighted, it could be unenforceable.

In the event of a dispute, you must act quickly: the plea of lack of jurisdiction must be raised before any defence on the merits (Article 74 of the Code of Civil Procedure). Otherwise, it is time-barred.

Four tips to avoid this type of dispute

• Read the general conditions carefully before signing any contract (lease, transport, insurance). Identify jurisdiction clauses, often at the end of the document. If they impose a distant court, ask for their deletion or modification.
• Negotiate the clause: if you are in a strong position (e.g. you are a professional dealing with a consumer), you can require that the competent court be that of your home or the place of performance of the contract.
• Keep proof of acceptance: if you are the drafter of the contract, have a specific document of acceptance of the jurisdiction clause signed, or highlight it (bold characters, box) to avoid any subsequent challenge.
• In case of dispute, check jurisdiction before suing: if a clause is invoked against you, check whether you accepted it. If not, sue before the legally competent court (defendant's domicile or place of delivery).

Further reading: related case law and developments

The Supreme Court has confirmed this principle several times. In a judgment of 4 April 1991 (n° 89-19.895), it had already held that a jurisdiction clause inserted in a transport contract is only binding on the consignee if he had knowledge of it and accepted it. The 1992 decision is in line with this.

Since then, case law has evolved towards greater protection of consent. For example, in a judgment of 30 March 2022 (n° 20-22.375), the Supreme Court held that a jurisdiction clause in an insurance contract is only binding on the insured if it was brought to his attention in a clear and unambiguous manner, and he accepted it.

The trend is therefore towards a requirement of express acceptance, especially in contracts concluded by consumers. Professionals must be particularly vigilant: a clause buried in general conditions risks being unenforceable.

Summary and next steps

FAQ:

• What to do if a jurisdiction clause is invoked against me but I did not accept it? Immediately raise the plea of lack of jurisdiction before the court seised, before any defence on the merits. Rely on the judgment of 26 May 1992.
• Can I challenge a jurisdiction clause in a contract I signed? Yes, if it was not brought to your attention clearly and accepted expressly. But it is more difficult to challenge after signature.
• What are the time limits for action? The plea of lack of jurisdiction must be raised in limine litis, i.e., before any defence on the merits. You therefore have until the first submissions on the merits.
• Which court is competent in the absence of a valid clause? The court of the defendant's domicile (Article 42 of the Code of Civil Procedure) or, in contractual matters, the court of the place of actual delivery or performance of the service (Article 46).
• Can I claim damages if I am forced to litigate before a distant court? Yes, if you prove damage (travel costs, additional legal fees). But this route is rarely used.

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