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How Does French Law Deal with Anticipatory Breaches of Contract?

Published online by Cambridge University Press:  17 January 2008

Simon Whittaker
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Extract

It is clear that there is no doctrine of anticipatory breach as such in French contract law.1 How then does it deal with the facts which in English law give rise to the application of this doctrine? In answering this question, it is helpful to bear in mind that the two situations which English law treats as anticipatory breach are where a party declares in words or demonstrates by conduct his unwillingness to perform and where a party has “disabled” himself from performance owing to his own “act or default”.2

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 3 , July 1996 , pp. 662 - 667
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. See the assertion by a French jurist to this effect in Houin, R., “Some Comparative Aspects of the Law Relating to Sale of Goods”, in I.C.L.Q. Suppl. Publ. No.9 (1964). pp.27–28.Google Scholar

2. Treitel, G. H., The Law of Contract (9th edn, 1995). pp.769 et seq.Google Scholar

3. Nicholas, B., The French Law of Contract (2nd edn. 1992), pp.158–159.Google Scholar

4. Bénabent, A., Droit civil, Les obligations (4th edn. 1994), p. 154.Google Scholar The length of this period is within the appréciation souveraine desjuges du fond. Cf. Ghestin, J. and Desché, B., Traité des contrats, La Vente (1990), pp.719–720. who note that the courts allow a reasonable time for performance of a seller's obligation to deliver property under a contract of sale.Google Scholar

5. Art.1185, Civil Code. It is therefore, to be contrasted with condition in that the latter may suspend the party's obligation itself, this suspension being dependent on the occurrence of a future but uncertain event: Art.1168.

6. On the other hand, the fact that the obligation already exists is reflected in the fact that if e.g. money is paid under an obligation whose performance is not yet due it cannot be recovered as money undue: idem, Art.1186.

7. The time at which performance is due is referred to as the échéance de la créance à terme and where this non-performance is actionable before this time, its déchéance is said to have occurred: see the elaborate discussion in Ghestin, J., Traité de droit civil, Les effects du contrat (2nd edn, 1994 with C. Jamin and M. Billiau). Nos.161 et seq.Google Scholar

8. Thomas, J. A. C., Textbook of Roman Law (1976). pp.233–234; Gaius 3.124.Google Scholar

9. See infra.

10. Treitel, op. cit. supra n.2. at p.770.Google Scholar

11. Terré, F., Simler, P. and Lequette, Y.. Droit civil, Les obligations (5th edn. 1993). No.549, pp.413–414. This is often referred to in terms of inéxecution dolosive.Google Scholar

12. Op. cit. supra n.3, at pp.216 et seq.Google Scholar

13. Bénabent. op. cit. supra n.4. at No.864, p.427.Google Scholar

14. Nicholas, op. cit. supra n.3. at pp.213 et seq.Google Scholar

15. These are known as clauses résolutoires and are very common in practice.

16. The effect of this termination is retroactive.

17. Art.1184.3. Civil Code. French courts have on occasion come to intermediate results, declaring the contract subsisting but reducing the price.

18. Cf. H. L. and Mazeaud, J., Leçons de droit civil. T. II. Vol.1: Obligations, théorie géné-rale (8th edn. 1991. by F. Chabas). No.1099, p.1160; Tereé et al., op. cit. supra n.11, at No.630, p.479.Google Scholar

19. There is no formal restriction in Art. 1184.3. Civil Code to cases of non-performance in good faith. However, this provision is to be compared to Art. 1244–1. which gives the court a discretion to give debtors of money obligations time to pay where their financial circumstances are difficult, a possibility which one leading text declared applied at least before its last re-amendment only to debtors in good faith: Malaurie, P. and Aynès, L., Droit civil, Les obligations (6th edn, 1995), No.1012. p.587.Google Scholar

20. Remedies for Breach of Contract, A Comparative Account (1988). p.380Google Scholar, citing Car-bonnier, J.. Droit civil. T.4: Les obligations (updated to 18th edn. 1994). No. 187. p.303.Google Scholar

21. This position is confirmed by the way in which some jurists describe what some of them consider to be another exception to the rule requiring judicial intervention, viz. the faculté de remplacement. Under this doctrine, a buyer of fungible goods in a commercial sale may. without the need to go to court, buy equivalent goods in the market and then claim their cost from the seller, but this possibility is restricted by the jurists to the case where the seller has failed to deliver at the stipulated time: Ghestin and Desché. op. cit. supra n.4, at No.700. p.742: Dutilleul, F. Collart and Delebecque, P.. Contrats civils et commerciaux (2nd edn. 1993), No.242. p.196.Google Scholar Other jurists treat this possibility as reflecting a general rule according to which an injured party may “repair his own damage” at the cost of the person responsible for it: H., L. and Mazeaud, J. and Chabas, F., Leçons de droit civil. T.III, Vol.2: Principaux contrats: vente et échange (7th edn. 1987. by M. de Juglart). No.946, p.261.Google Scholar

22. Starck, B.. Roland, H. and Boyer, L., Obligations. Vol.2: Contrat (4th edn. 1993). No.1402. p.586: Mazeaud et al. idem, No.944. p.260. and see Req. 4. I. 1927. D.H. 1927.65.Google Scholar

23. Art. 1150. Civil Code.

24. Idem, Art.1151.