Inclusion of Ts&Cs
Under French law, Ts&Cs are in principle enforceable if they have been communicated to and known by the party against whom they are enforced before the conclusion of the agreement.
Hence, Ts&Cs should appear on documents communicated and known by the parties before such conclusion (for instance purchase orders). Their inclusion in documents communicated after the contract conclusion (i.e. shipment documents, invoices etc.) should not, in principle, be sufficient to establish their acceptance by the parties except in certain cases where the parties have been in commercial relationships for several years (where there is a “course of business”).
Ts&Cs shall be displayed in an apparent and readable manner, especially their onerous clauses (limitation of liability, jurisdiction clause, retention of title etc.).
In practice, it is highly recommended to include an express reference to the Ts&Cs in the contractual documentation (i.e. whole reproduction, express reference and extracts, annex embodying the Ts&Cs etc.) and not only a reference to a website.
Ts&Cs are heavily regulated under French law so that both their content and communication methods should be checked carefully.
From a French law perspective, under the CISG, the situation is unclear. As the application of the CISG is often excluded from agreements subject to French jurisdiction and French law, there is no significant published case-law in this respect.
Battle of Forms
Under French law, the Knock-Out Rule applies.
French civil law principles and case law support the Knock-Out Rule. However, for several years, there has been a statutory trend to give preference to general terms of sale over general terms of purchase. Recently, the Loi Hamon of 17 March 2014 even provided that „general terms of sale constitute the unique basis of commercial negotiation“. In practice, this means that the general terms of sale constitute the starting point of any negotiation and that the general terms of purchase will only be communicated in a second phase.
From a French law perspective, under the CISG, the situation is controversial. There are lots of debates among legal commentators as to the application of the Last-Shot Rule or the Knock-Out Rule under Article 19 of the CISG. There is no significant case law from French courts in this respect.