Article 46 of the Civil Procedure Code offers the claimant a territorial jurisdiction option that goes beyond the classic principle of the defendant’s domicile court. This provision, often summarized in a few lines in textbooks, is nonetheless subject to judicial interpretations that alter its concrete scope. What criteria truly determine the choice of court, and how do recent decisions reshape the contours of this option?
Territorial Jurisdiction: Article 42 vs. Article 46 of the Civil Procedure Code
| Criterion | Article 42 (general principle) | Article 46 (jurisdiction option) |
|---|---|---|
| Competent court | Place of the defendant’s domicile | Place of performance of the service or place of the harmful act (at the claimant’s choice) |
| Type of dispute | All civil disputes | Contractual or tortious matters |
| Initiative of choice | No choice: the defendant “imposes” their court | The claimant chooses from several possible jurisdictions |
| Jurisdiction clause | Can be set aside by a clause between merchants | The option remains unless a valid contrary clause exists between professionals |
Article 42 establishes the default rule: the claimant brings the case to the court of the place where the defendant resides. Article 46 introduces a targeted exception. In contractual matters, the claimant can bring the case to the court of the place of performance of the service or the actual delivery of the item. In tort matters, they can opt for the court of the place of the harmful act or the jurisdiction where the damage was suffered.
This duality is not merely a procedural detail. For an individual having a kitchen installed by a service provider located hundreds of kilometers away, the difference between litigating at the defendant’s headquarters or at their own domicile court (place of performance) represents a direct practical stake: travel expenses, choice of lawyer, hearing delays.
To learn everything about Article 46 CPC, it is essential to distinguish between contractual situations and tort situations, as the criteria for territorial connection do not overlap.
Place of Performance of the Service: What the Court of Cassation Clarified in 2026
The notion of “place of performance of the service” seemed established for simple cases (delivery of a good to an address). It was less clear for installation, maintenance, or on-site service contracts.
The 2nd Civil Chamber of the Court of Cassation, in a ruling dated March 5, 2026 (n° 23-16.308), clarified a point that remained vague. For an installation contract, the competent court under Article 46 is the one where the installation was physically carried out and inspected. The place of performance does not coincide with the service provider’s registered office or the place of contract signing.
This decision has concrete implications for several categories of disputes:
- Contracts for installation at a private individual’s home (kitchen, heating, solar panels): the client can bring the case to the court of their own domicile, as this is where the service was performed.
- Industrial maintenance contracts performed at the client’s premises: the place of performance is that of the factory or site, not the maintainer’s headquarters.
- Mixed service contracts (design at the provider’s office, execution at the client’s location): the Court considers the place of physical execution, not that of design.
In practice, this interpretation strengthens the effectiveness of the option provided by Article 46, preventing the claimant from being systematically sent to the court of the professional’s headquarters. Physical execution on-site takes precedence over the administrative location of the provider.
Article 46 and Commercial Leases: An Underutilized Option Before the Judicial Court
The application of Article 46 to professional rental disputes remains poorly understood. A decision from the judicial court of Beauvais, rendered in August 2026, illustrated how the jurisdiction option works in commercial and professional lease disputes.
The principle is as follows: when a dispute arises between a landlord and a tenant regarding the execution of the lease (unpaid rent, works, termination), the place of performance of the service under Article 46 is that of the leased property. The tenant or landlord can thus bring the case to the court within the jurisdiction where the premises are located, even if the defendant resides elsewhere.
This possibility is distinct from the exclusive jurisdiction provided for certain real estate disputes (real property actions, for example, governed by Article 44). For a standard commercial lease concerning rent claims, the option of Article 46 remains open, unless a valid jurisdiction clause is included in the contract.
However, between merchants, a jurisdiction clause can exclude Article 46. This type of clause, common in leases drafted by national brands, must be clearly stated in the contract to be enforceable. When it is missing or deemed not apparent, the option of Article 46 reasserts itself.
Jurisdiction Clause and Limits of Article 46 of the CPC
The jurisdiction option of Article 46 is not absolute. Two mechanisms frequently neutralize it.
- The jurisdiction clause between professionals (Article 48 CPC): valid only between merchants, it must be specified very clearly. It then excludes the application of Articles 42 and 46.
- Exclusive jurisdictions provided by law: certain disputes (real property actions, collective proceedings, social security disputes) fall under jurisdictions designated by special texts that take precedence over Article 46.
- Incompetence raised in limine litis: the defendant can contest the choice of jurisdiction made by the claimant, but must do so before any substantive defense, or risk tacit validation of the chosen jurisdiction.
The classic trap lies in mixed contracts (service provision accompanied by the sale of equipment). The place of delivery of the equipment and the place of performance of the service may differ. The March 2026 ruling from the Court of Cassation provides a preliminary answer by favoring the place of physical execution, but each situation remains assessed on a case-by-case basis by the judge.
Article 46 of the Civil Procedure Code remains a procedural lever whose scope largely depends on the qualification of the contract and the concrete location of performance. The clarifications provided by the 2026 case law confirm a favorable reading for the claimant, provided they correctly identify the place of performance of the service and verify the absence of an enforceable jurisdiction clause.
