Article L110-1 of the Commercial Code holds a unique place in French law. Rather than providing an abstract definition of a commercial act, the legislator opted for a list of operations deemed commercial. This drafting choice, inherited from the 1807 code, still has concrete effects today on the qualification of activities, the applicable proof regime, and the jurisdiction of courts.
Why the Commercial Code Does Not Define the Commercial Act
The text of Article L110-1 begins with a direct formula: “The law deems acts of commerce.” This is followed by a list of operations, from the purchase of movable goods for resale to foreign exchange and brokerage operations. The code enumerates without ever defining, leaving it to jurisprudence and doctrine to establish common criteria.
This enumerative approach poses a structural problem. The list is not exhaustive, and the legislator has rarely updated it to incorporate contemporary economic realities. The direct consequence: it is the judges who extend or restrict the commercial scope, on a case-by-case basis.
To delve deeper into the definition of the commercial act according to Article L110-1 of the Commercial Code, it is necessary to cross-reference the legislative text with the jurisprudential constructions that complement it.
Commercial Acts by Nature, by Form, by Accessory: What Each Category Covers
Doctrine traditionally classifies commercial acts into three categories. Each is based on a different criterion of connection to commercial law.
Commercial Acts by Nature According to L110-1
These are the operations that the text directly targets. They share a common trait: a logic of speculation or intermediation. The purchase of goods for resale (as is or after transformation) constitutes the archetype. The article also includes rental businesses, manufacturing operations, transport, supply, as well as banking and insurance activities.
The purchase of real estate for resale is also included in the list, with a notable exception: the buyer who purchases to build and resell buildings falls under a different regime. This distinction illustrates the nuance of the text, which is not limited to a mechanical classification.
Commercial Acts by Form
Some acts are commercial regardless of the quality of their author. This is the case for the bill of exchange, commercial by nature according to an old codified rule. Companies constituted in the form of SA, SAS, or SARL are also deemed commercial by their form, regardless of their corporate purpose.
Commercial Acts by Accessory
A civil act performed by a merchant in the context of their commercial activity becomes commercial by accessory. This category, constructed through jurisprudence, is based on the idea that the merchant’s activity colors the acts related to it. A mechanic who purchases furniture for their workshop performs a commercial act by accessory, while the same purchase by a private individual would remain civil.
Qualification of Commercial Acts and Tax Requalification on Digital Platforms
One of the most current extensions of Article L110-1 concerns sales between individuals on online platforms. The European directive DAC7, fully operational in France by 2026, requires platforms like Vinted or Leboncoin to automatically transmit user data exceeding certain annual transaction thresholds to the tax authorities.
The filtering criterion used by the administration is based on a behavior of buying to resell, which precisely corresponds to the first paragraph of Article L110-1. An individual who regularly purchases goods to resell them at a profit may be requalified as engaging in a commercial activity, with the fiscal and legal consequences that this entails.
- Registration in the commercial register may be required if the activity becomes habitual and exceeds the management of personal assets.
- The applicable tax regime shifts to industrial and commercial profits (BIC), with specific reporting obligations.
- The jurisdictional competence changes: disputes related to these activities potentially fall under the commercial court.
This convergence between a 19th-century text and 21st-century detection algorithms shows that the list in Article L110-1 retains direct operational relevance.
Proof of Commercial Acts: The Framework of Article L110-3 and Its Recent Developments
Article L110-3 of the Commercial Code establishes a principle of freedom of proof for commercial acts. Unlike civil acts, which are subject to stricter rules (written form required above a certain amount), commercial acts can be proven by any means: testimonies, invoices, emails, correspondence.
This principle of evidentiary freedom has, however, undergone recent regulation. Since a plenary assembly ruling by the Court of Cassation on December 22, 2023, the proof of commercial acts is subject to a proportionality control. Judges now verify that the evidence produced does not disproportionately infringe on fundamental rights compared to the interest it represents for the dispute.
This evolution modifies contentious practice. A merchant who produces private email exchanges to prove a contractual commitment could see this evidence dismissed if the judge deems the invasion of privacy excessive. Summary notes on Article L110-1 generally overlook this dimension, which directly impacts how commercial acts are defended in court.
Mixed Acts and Jurisdictional Competence: A Persistent Gray Area
When an act is commercial for one party and civil for the other, it is referred to as a mixed act. This is the case, for example, of a consumer purchasing a good from a merchant. The applicable regime varies depending on which party is taking legal action.
- The non-merchant can sue the merchant in either the civil court or the commercial court, at their discretion.
- The merchant can only sue the non-merchant in the civil court.
- The proof regime follows the same dualistic logic: freedom of proof against the merchant, civil rules against the non-merchant.
This asymmetry protects the party deemed weaker, but it also generates uncertainties when the qualification of the act itself is contested. The boundary between civil acts and commercial acts often remains a question of fact, resolved on a case-by-case basis.
Article L110-1 provides the textual foundation, but the concrete qualification depends on the context of each operation, the intention of the parties, and the frequency of the acts. French commercial law thus operates on a permanent tension between a fixed enumerative text and an economic reality that evolves much faster than the legislator.
