Proof of delivery in the sale of movable property

In a recent decision of 26 June 2024 (Cass.com, 26 July 2024, no. 22-24.487), the Commercial Chamber of the Court of Cassation ruled that the principle that no one can create a document of title for himself does not apply to the proof of a legal fact such as the delivery of a sale of movable property. As a result, proof of delivery in the case of a sale of movable property may be provided by any means and is subject to the sovereign discretion of the trial judges. This is a particularly interesting question when it comes to business relationships established between a company and a supplier who have a constant and historic relationship.  

• Legal context

The question is whether, in the case of a sale of goods, delivery can be proved by any means. In this specific case, the principle that no one can create a document of title for himself, in accordance with article 1363 of the Civil Code, would not be applicable and the admission of proof would therefore be a matter for the sovereign judgement of the trial judges. As a result, a delivery note that has not been signed by the customer could be recognised as proof of delivery by the judge, who would make a sovereign assessment.  

• Court of Cassation ruling

An entrepreneur in receivership had opened a customer account with a company. The said company had obtained an order for payment in respect of unpaid debts. As part of the insolvency proceedings, this claim was declared and entered in the contractor’s liabilities, but the contractor contested it. The company presented twenty-five delivery notes, but only five of them were signed by the contractor in receivership. Some of these delivery notes had no signature at all, and others showed a ‘scrawl’ or ‘obscene drawings’ (!!!). The debtor then invoked Article 1363 of the Civil Code, which states that no one can create a document of title for himself, because he was the only person authorised to sign the delivery notes. The Court could not therefore accept the evidential value of the documents produced by the company. However, the Court of Cassation noted that the contractor had been buying from the company for many years, that the company had provided a certified client account in its books and that several delivery notes bore the contractor’s signature. In addition, the contractor had already paid for delivery notes that did not bear his signature. The Commercial Chamber of the French Supreme Court therefore dismissed the contractor’s appeal and upheld the evidential value of the documents provided by the company.  

• Practical implications

In ruling in this way, the Cour de cassation has left it up to the trial judges to determine the evidential value of the documents produced, and has set aside the principle that no one may make a delivery to himself (article 1363 of the French Civil Code). As a result, in matters of proof of sale of movable property, the parties to the contract may provide any evidence in their possession, such as an unsigned delivery note.  

• Proof of delivery in the sale of movable property

This case law has a significant impact on business relationships between two contracting parties. In fact, when two companies have a constant and historic contractual relationship, it is necessary to remain very vigilant when it comes to proving the delivery of movable property. The judges of the court of first instance, in their sovereign judgement and disregarding the principle that no one can create a document of title in his own right, could accept the probative value of any evidence provided by a co-contractor. This calls for greater vigilance, particularly when a company is the subject of insolvency proceedings and its creditors declare their claims to the said proceedings.