Many French businesses, and almost every pharmacy, are sold at a price indexed on turnover: a percentage applied to a base from which certain lines are deducted, a provisional price at signing and a final price once the accounts are closed. When the parties then fall out over the deductions, the reflex is to ask the court to decide. On 4 June 2025 the Cour de cassation (the French supreme court for civil and commercial matters) restated that the court has no such power: the price belongs to the parties, or to the third party they appointed to fix it. A pharmacy sale worth more than a million euros is thus left without a judicial price, and sent back to the clause it already contained.
The facts
On 7 September 2015 a selling company and a buying company signed a conditional promise of sale of a pharmacy business (fonds de commerce, the goodwill and the assets attached to it). The price was set at 80 % of the reference annual turnover, defined as that of the twelve months of trading preceding the antepenultimate month before completion. Several items were to be deducted from that turnover: sales made outside the counter, the hire of medical equipment and the sales linked to it, production services performed for laboratories, on-call allowances and a lump sum of 20,000 € for the minimum generic substitution rate expected.
The promise also provided for a third-party valuer, called an expert, both in case of disagreement on the accounts from which turnover was taken and in case of disagreement on the final price; failing agreement on the valuer’s identity, or if the valuer had not completed the task within six months, the appointment was to be made by the president of the commercial court of Niort on the application of the more diligent party.
The final deed was signed on 31 March 2016. As the 2015 accounts were not yet closed, a provisional price was paid. Once the accounting data was disclosed, the parties disagreed on 2015 turnover; they jointly appointed a valuer, who set it at 1,471,682 €. They then disagreed on the deductions. The seller sued the buyer before the commercial court, asking it to fix the final price itself and order the buyer to pay the balance, and, in the alternative, to order a court expert’s report.
The court fixed the price. The Poitiers Court of Appeal, on 12 December 2023, confirmed: starting from the turnover set by the joint valuer, it deducted itself the outside-counter sales, which it put at 53,000 €, made the other deductions provided in the deed, and held the sale concluded at 1,035,820 €, already paid by the buyer. It noted that the seller itself had asked the court for that determination.
The decision
The commercial chamber quashed the judgment (Cass. com., 4 June 2025, no. 24-11.580, published in the Bulletin), on the basis of articles 1591 and 1592 of the Civil Code: “Under the first of these provisions, the price of a sale must be determined and designated by the parties. Under the second, it may however be left to the estimate of a third party.” From which the Court draws the rule: “It follows that the court may not proceed to fix the price of the sale.”
By approving the trial court “for having itself quantified, in order to determine the sale price, the amount of the items to be deducted from annual turnover, an amount on which the parties disagreed”, the Court of Appeal breached those provisions. That the seller itself had asked the court for the determination changes nothing: the Court of Appeal ruled “whereas the trial court had no power to fix the sale price”, and a judge “decides the dispute in accordance with the rules of law applicable to it” (article 12 of the Code of Civil Procedure).
The Court ruled on the merits, without remittal. It annulled the first-instance judgment: “By valuing the sale price itself, the trial court exceeded its powers.” And it refused to appoint the third-party valuer the seller was now asking for: the deed of sale entrusted that appointment, failing agreement, to the president of the commercial court of Niort, “alone” competent to make it. The application was inadmissible. Ten years after the promise, the parties are sent back to the procedure written in their own contract.
What this changes for valuation
The price is contractual, or entrusted to a third party. Article 1591 requires a price determined or determinable by the parties; article 1592 allows it to be left to a third party’s estimate. Between the two there is no room for a price fixed by the court, even at a party’s request, even on the basis of a clear contractual formula. As soon as the parties disagree on one element of the formula, outside-counter sales, laboratory services, on-call allowances, the only body entitled to decide is the third-party valuer, appointed as the contract provides. The court can neither replace the valuer nor, as here, make the appointment in place of the court designated by the contract.
The third-party valuer is not a court expert. The mandate comes from the contract and from article 1592; the valuer fixes the price and does not give an opinion to a judge. The figure binds the parties, save gross error. That is why the drafting of the clause matters as much as the formula itself: who appoints the valuer, within what time, on which accounts, with which deductions, under which procedure for hearing both sides. In this case the clause was complete, and it is the clause that prevailed in the end, after six years of pointless litigation.
What the third-party valuer actually does. For a pharmacy, reference turnover is read in the accounts, but each deduction requires reading the entries: outside-counter sales are told apart from counter sales through the till journals and invoices; equipment hire and the associated sales have their own accounts; production services for laboratories and on-call allowances appear among ancillary income. The valuer’s report rebuilds the base line by line, cites the documents, applies the formula, then fixes the price. The French valuation charter (Charte de l’expertise en évaluation immobilière, 6th edition, November 2025, Title II, § 8.5) deals with the valuation of businesses and company shares; here the contractual method prevails over the usual valuation methods, which serve only to check the consistency of the result.
The provisional price and the balance. When a provisional price has been paid, the dispute is about a balance, positive or negative. Until the third-party valuer has fixed the price, no balance is due and no order for payment is possible: the seller who expected the court to order the buyer to pay leaves without a title. The reverse holds for the buyer: an overpayment can only be recovered after the price has been fixed.
What the valuer takes from it
- A sale price indexed on turnover is only determined if the formula is complete, deductions included; a dispute over a deduction is a dispute over the price.
- A court never fixes the price of a sale, even when a party asks it to and even from a contractual formula.
- The third-party valuer of article 1592 is the only way out; the appointment follows the clause to the letter, including the competent court.
- The third-party valuer clause deserves as much care as the price formula: identity or mode of appointment, time limit, accounting base, hearing of both sides.
- The valuer’s report rebuilds the base document by document; the classic valuation methods serve as a check, not as a foundation.
Further reading
The Business and company shares page describes the assignment, its timescale and its fee. The guide Selling my business in France: what is it worth and the glossary entry tiers évaluateur complement this article. On the same theme: Share sale price in France: the expert follows the protocol and Article 1843-4: the expert and alternative valuations. The decision is available on Légifrance.
What next
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