When I was practicing as in-house counsel, the issue of “loss of chance” was constantly surfacing : whether a missed bid, a terminated contract, or a lost commercial opportunity. Arguing the correct qualification (certain damage vs. loss of chance) was often crucial for determining the compensation.
On September 11, 2025 (No. 23-21.882), the Third Civil Chamber of the Cour de cassation provided an important clarification applicable to contracts involving success-based remuneration.
📋 The Facts (briefly)
A real estate investment company (SCI) entrusted GRC Consulting with managing a construction-related insurance claim, in exchange for success fees calculated as a percentage of the compensation obtained.
The SCI unilaterally terminated the contract early.
GRC sued to recover the remuneration it claimed it would have earned.
The Court of Appeal awarded the consultant the entire amount of the expected fees, holding that compensation of the underlying claim was “inevitable.”
🎯 What the Supreme Court Held
The Court partially overturned the judgment and reframed the damage: when a contract includes remuneration dependent on a favorable outcome, early termination gives rise to a loss of chance, not a certain gain.
The Court stressed that a loss of chance can never be compensated at the full value of the advantage that would have been obtained if the chance had materialized.
Compensation must be assessed according to the probability that the consultant would have achieved the expected result, and only then applied proportionally to the anticipated benefit.
The case was remanded for a new assessment.
🔎 Practical Takeaway
Before: Some courts tended to compensate the full expected gain when termination was wrongful.
After (Sept. 11, 2025): If the fee depends on an uncertain event, even if the outcome was likely in principle compensation must follow the logic of loss of chance = probability × expected advantage.
🛠️ Immediate Practical Implications
• For success-fee contracts: ensure precise drafting (evaluation methods, acknowledgment of uncertainty, mechanisms for evidence).
• For courts: assess, at the time of termination, the probability that the consultant would have achieved the result.
• For practitioners: prepare probabilistic evidence (factual indicators, reasonable likelihood estimations, or expert financial assessments).
💬 This ruling provides valuable clarity: compensation must reflect the lost chance, not the hypothetical full gain. It reinforces a methodical approach to evaluating damage when remuneration is contingent on outcome and highlights the need for tighter contract drafting and evidence preparation.
