The Besse ruling, delivered by the Full Court of the Court of Cassation on 12 July 1991, settled a question that had divided the civil chambers for years: can a project owner bring a contractual claim against a subcontractor with whom they have no direct contract?
The negative answer redrew the boundary between contractual and tort liability in chains of contracts. To assess the significance of this decision, it is necessary to compare the state of the law before and after 1991, then examine how subsequent case law and the 2016 reform of the Civil Code have extended or qualified this solution.
Chains of contracts and direct claims: the legal framework before and after Besse
Before 1991, two interpretations coexisted within the Court of Cassation. The First Civil Chamber accepted that a sub-purchaser or project owner could bring a contractual claim against a party further down the chain. The Third Civil Chamber rejected this extension, relying on the principle that contracts have effect only between the parties.
The table below summarises the positions and the solution adopted by the Full Court.
| Criterion | Before Besse (First Civil Chamber) | Before Besse (Third Civil Chamber) | After Besse (Full Court, 1991) |
|---|---|---|---|
| Nature of the project owner’s claim against the subcontractor | Contractual (the claim passes along the chain) | Tort-based only | Tort-based only |
| Legal basis relied on | Group of contracts, accessory to the asset | Privity of contract (former Article 1165 of the Civil Code) | Privity of contract |
| Direct contractual relationship required | No | Yes | Yes |
| Consequence for the claimant | Contractual liability regime (limitation periods, limitation clauses) | Tort liability regime (proof of fault, damage and causation) | Tort liability regime |
By ruling in favour of the Third Civil Chamber, the 1991 Besse ruling put an end to the theory of groups of contracts in chains that do not involve the transfer of ownership. The subcontractor is not in a contractual relationship with the project owner: no contractual obligation binds them.
Privity of contract and enforceability against third parties: what Besse clarified
The principle of privity of contract means that a contract creates obligations only between the parties who entered into it. The Besse ruling applied this principle strictly to subcontracting chains: the project owner and the subcontractor, each bound to the main contractor by separate contracts, are not parties to the same contract.
This strict approach does not prevent a contract from producing effects in relation to third parties in another respect. Since the reform of the law of obligations came into force on 1 October 2016, Article 1199 of the Civil Code has restated the principle that a contract creates obligations only between the parties. Article 1200 adds that third parties must respect the legal situation created by the contract and may rely on it, particularly as evidence.
This distinction between binding effect (reserved for the parties) and enforceability against third parties provides a statutory framework for the solution established in Besse. A third party cannot rely on the contract to demand performance of an obligation, but may invoke the existence of that contract in a claim based on a different legal ground.
Why the distinction between chains involving a transfer of ownership and those that do not matters
Besse applies only to chains that do not involve the transfer of ownership, meaning those in which the same asset is not successively transferred from one contracting party to another. In a chain involving a transfer of ownership (the sale of an asset from manufacturer to wholesaler, then retailer, then consumer), the sub-purchaser may still bring a direct contractual claim against the manufacturer. The Court of Cassation recognised this mechanism as early as 1986.
The scope of Besse therefore depends on the nature of the chain:
- Chain involving successive sales of an asset: the sub-purchaser’s direct contractual claim against the original seller remains available because the obligation passes as an accessory to the asset sold.
- Chain not involving a transfer of ownership (subcontracting, works contracts): no direct contractual claim between parties who are not bound by the same contract. The claimant must prove tortious fault.
- Contract stipulating a benefit for a third party (stipulation pour autrui): the third-party beneficiary has an independent right, distinct from the mechanism rejected in Besse.
Tort liability and breach of contract: developments after 1991
Besse closes off the contractual route, but subsequent case law has opened another. In 2006, the Full Court held that a third party may rely on a breach of contract in a tort claim where that breach has caused them damage. This solution was confirmed in 2020.
In practice, a project owner who suffers loss as a result of a subcontractor’s actions is not without recourse. They may bring a tort claim and rely on the subcontractor’s breach of its contractual obligations to the main contractor as the event giving rise to their own loss.
Contractual limitations affect the third party’s compensation
A more recent development deserves attention: a third party’s claim remains subject to the terms of the contract. The contract between the main contractor and the subcontractor may contain limitation-of-liability clauses or caps on compensation. Recent case law tends to hold that these limits may be invoked against the third party, even where their claim is tort-based.
This qualifies the apparent advantage of the tort route. The third party avoids the contractual liability regime when it comes to classifying their claim, but the contract they rely on as evidence of the breach still influences the extent of compensation.
Article 1199 of the Civil Code and the legacy of Besse: where does the law stand today?
The 2016 reform did not expressly codify the Besse solution. It did, however, strengthen the foundations on which that solution rests. Article 1199 enshrines privity of contract. Article 1200 governs enforceability against third parties. Together, these provisions formalise the distinction the Full Court applied in 1991 without an explicit statutory basis.
The Besse ruling continues to be cited in textbooks and judgments as the leading case rejecting contractual claims in chains that do not involve a transfer of ownership. Its scope has not been challenged. Subsequent developments (tort claims based on a breach of contract and the enforceability of limitation clauses) have built on the framework it established without contradicting it.
For practitioners, the consequence remains the same thirty years later: in a dispute involving a subcontracting chain, the first question to resolve is whether the chain involves a transfer of ownership. This classification determines the basis of the claim, the applicable rules of evidence and the limits on compensation.
