by Simon Whittaker*(2000) Oxford U Comparative L Forum 7 at ouclf.law.ox.ac.uk | How to cite this article Show
IntroductionThe “performance” of obligations by persons other than those who bear them, far from being exceptional, is an everyday occurrence under both the French and English systems of law. It is the purpose of this paper to explain how this is the case in particular in relation to contractual (and private law1) obligations and to explain how this relates to more general issues of performance (whether voluntary or enforced), damages (notably, the rules clustered around the notion of mitigation) and restitutionary recovery. As my title indicates (and, indeed, as the structure of the French law requires), I shall discuss the performance of obligations in general and not merely those to pay money. The juxtaposition of two provisions of the French Civil Code forms the starting point of my discussion: the first, article 1236, is the obvious one, as it deals with the situations in which the law permits the performance of another’s obligation by a third party; the second, article 1144, is less obvious, as it provides for judicial authorisation of a creditor of a contractual obligation to have the debtor’s obligation performed at the debtor’s expense. I. A note on terminologyIn the following discussion, it seems to me helpful to set out the French terminology and explain its usefulness for analysis of our two
situations. Here, we need to distinguish carefully between obligation, prestation and paiement. In French discussions, the term obligation itself may bear two significances; it may describe the totality of the relationship between the two parties, the duty-bearer (known as débiteur , whether or not the obligation concerns a sum of money) and the right-holder (known as créancier, equally generally).However, obligation may also bear the significance
which is most common to the English word obligation, i.e. to describe the duty itself, la dette, the correlative of which is the creditor’s personal right, the droit de créance. French law takes analysis of obligation a stage further and asks what is the subject matter of this duty and answers that it is the prestation, the “thing to be done” (or “thing not to be done”) with which the obligation is
concerned.2 So, for example, in a building contract, for the builder it is the work, for the employer the paying of the price. Thus, the well-known French classification of obligations into those to do, not to do and to transfer property (de faire, de ne pas faire and de donner
3) is a classification according to the nature of the prestation.4 II. “Parties au paiement:” article 1236 C. civ.1. The textsArticle 1236 of the Civil Code describes the general rules as to paiement by a third party: An obligation may be discharged by any person who has an interest in doing so, such as a joint debtor or a surety. The obligation can even be discharged by a third party who has no interest in doing so, provided that the third party acts in the name of and in order to discharge the debtor or provided that, if he acts in his own name, he is not subrogated to the rights of the creditor.10 Article 1237 then qualifies this:11 An obligation to do cannot be discharged by a third party contrary to the wishes of the creditor, where the latter has an interest in it being performed by the debtor himself.12 This framework of rules is clearly derived from the Roman position, via Pothier.13 The position in the modern French law is somewhat more complex than these provisions suggest, particularly as regards the relationship between paiement by a third party and restitutionary recovery.14 In all, three questions are addressed: who may perform an obligation? what is the effect of performance on the original obligation? what recourse by the third party is recognised? 2. Who may perform?In principle any person may perform another person’s obligation: as it is often put, “in principle the personality of the solvens is a matter of indifference.”15 The third party need not for this purpose even purport to act in the name of the debtor in offering the prestation,
as long as he offers the creditor exactly the subject matter of the debtor’s obligation. While in French law, a typical context for third party performance of an obligation is the case where the debtor asks a third party to perform the prestation for him, there is no need for the third party to have the debtor’s consent or authority to act in this way (though the issue of consent does affect the possible recourse which a third party may have against the
debtor).16 3. The “liberating effect” of performance and recourse by the third partyArticle 1236 sets out the “liberating effect” of third party performance, an issue which in French law is intimately related to the question of recourse by the third party. In the following discussion it should be recalled that there is no general requirement that any of the paiements in question be effected with the debtor’s consent: instead, the primary distinction is between performance by a third party with or without an interest in doing so. (a) performance by interested third partiesWhere the third party whose performance is accepted by the creditor has an interest in so
acting, then the debtor is discharged vis-à-vis the creditor, but not vis-à-vis the third party, who is subrogated by operation of law into the legal position of the creditor.27 French law therefore uses the idea of relative discharge to reconcile the third party’s intention to discharge the debtor, the creditor’s
satisfaction and the technique of subrogation. Article 1236 gives two examples of such an interest: where the third party is jointly obligated with the debtor and where he is the debtor’s surety (caution). As to the latter, it is to be noted that a surety who performs the obligation for the debtor (typically, but not exclusively by paying a sum of money), may recover from and is subrogated to the creditor’s rights against the debtor whether or not the surety entered the contract of
suretyship at the request of the principal debtor.28 However, the form of article 1236 makes clear that a third party may have an interest in performing another’s obligation, even where not himself a joint debtor or surety. A common example of this in French practice is the situation where A buys from B property which is subject to a
mortgage or lien owed by B to C: here, A has an interest in paying the debt owed by B to C so as to avoid the threat of dispossession by C.29 (b) performance by non-interested third parties.As regards performance by non-interested third parties, the position has proved more controversial and remains more complex. Article 1236 itself
distinguishes here between those third parties who perform “in the name of and to discharge the debtor”(“au nom et en l’acquit du débiteur“) and those who perform to discharge the debtor but in their own name:33 the former are to benefit from subrogation to the creditor’s rights against the debtor by operation of law and so their
performance in general discharges the debtor vis-à-vis the creditor, but not vis-à-vis the third party. Article 1236 also provides that performance by a third party to discharge the debtor but in the third party’s own name will discharge the debtor, but will not give rise to any subrogation to the creditor’s rights: here, then, the original obligation is entirely extinguished. However, in order for even relative discharge to occur, the third party must perform out of his own
resources (“de ses propres derniers“), a condition which arises in the context of payments in money. Thus, if a third party purports to pay a debtor’s debt out of his own funds, but is found to have paid out of the creditor’s funds, then the obligation is not discharged.34 III. The faculté de remplacement: article 1144 C. civ.Again, though, my starting point is a provision of the French Civil Code: but here it refuses to allow intervention by the
non-debtor without judicial authorisation. The provision in question relates to much wider questions about the nature of performance of contractual obligations and this requires a brief introduction. ConclusionFrom what has just been said, it can be seen that even if in English law a third party cannot effectively discharge another’s money obligation without the latter’s authority, a creditor of a non-money obligation may do so and then recover from the debtor its cost, whether the debtor approves or not, though subject to the control of the “reasonableness” of his doing so. In French law, by contrast, a third party may perform the debtor’s prestation even without his consent, but may recover from him only if he can establish a legal ground for doing so, whether gestion d’affaires or enrichissement sans cause. On the other hand, in French law in general a creditor of a contractual obligation to do may not have the obligation performed by a third party without prior authorisation by the court. In both these situations, French courts can be seen to protect the debtor’s right to perform. In all, though, under both the English and French systems, it is clear that contractual obligations are very frequently “performed” by third parties: either at the request of the debtor (whose agents therefore “vicariously perform” the debtor’s obligation) or at the request of the creditor (on breach and for reward by the creditor, either with or without the need to have recourse to court). Footnotes* Fellow and Tutor in Law, St. John’s College, Oxford. The author wishes to express his gratitude for comments on an earlier draft of this paper made by participants at the colloquium held in Cambridge in April, 1999. 1 This article will discuss the French private law position and not raise in its discussion of English law the question whether its treatment of the performance of public law duties by third parties differs from its treatment of private law contractual duties. 2 The relationship between obligation and prestation is usually found in French texts in their analysis of the requirement of objet for the validity of a contract: see arts. 1126 – 1130 C. civ.; François Terré, Philippe Simler, Yves Lequette, Les obligations (6th ed. 1996), pp. 215 ff. and Barry Nicholas, The French Law of Contract (2nd ed., 1992), pp. 114-115. 3 See arts. 1136 and 1142 C. civ. 4 Nicholas (n. 2), p. 115 explains that there is a further level to the analysis, according to which the subject matter of a prestation is said to be la chose. So, for example, in the case of sale, “a seller’s obligation is, among other things, the prestation consisting in the conveyance of the thing, and … the objet of that prestation is the thing (chose) itself.” 5 A further and different significance is to be found in relation to paiement de l’indu, where paiement is to be understood as refering only to the performance of obligations to transfer property, whether movables (including and typically money) or immovables. This more restricted usage results from French law’s treatment of restitutionary recovery in respect of “undue services” as a matter for enrichissement sans cause rather than répétition de l’indu: see Simon Whittaker, Chap. 10, Obligations, in John Bell, Sophie Boyron and Simon Whittaker, Principles of French Law (1998), p. 407. 6 “Le paiement est l’extinction de l’obligation part son exécution:” Philippe Malaurie and Laurent Aynès, Droit civil, Les obligations, (8th edn., 1997), p. 557. Pothier, termed thisle paiement réel, i.e.”l’accomplissement réel de ce qu’on s’est obligé de donner ou de faire.’ Traité des obligations, no. 494, Oeuvres de Pothier, (Paris, 1821), Les obligations, Tome 2, p. 2. 7 Below. Use of the verb “acquitter” is no more conclusive: it normally refers to the discharge of the debtor, but art. 1236 C. civ. uses it as regards paiement by third parties who benefit from subrogation where the debtor is discharged only vis-à-vis the creditor. 8 “L’accomplissement de la prestation qui forme la matière de l’obligation:”C. Aubry and C. Rau, Cours de droit civil français d’après la méthode de Zachariæ (6th ed., 1936 by E. Bartin) Tome 4, § 315, p. 220. 9 Below. 10 “Une obligation peut être acquittée par toute
personne qui y est intéressée, telle qu’un coobligé ou une caution. 11 There is a further qualification that in order to constitute valid paiement, the payor must be the owner of the thing and capable of alienating it (art. 1238 C. civ.) but this need not detain us. 12 “L’obligation de faire ne peut être acquittée par un tiers contre le gré du créancier, lorsque ce dernier a intérêt qu’elle soit remplie par le débiteur lui-même.“ 13 Pothier (n. 6), nos. 495-500, pp. 3-8. 14 See Whittaker (n. 5), pp. 398-403 on the difficulties of using the terminology of “restitution” in the French context. 15 Malaurie and Aynès (n.6), p. 559. 16 Below. 17 Joseph Issa-Sayegh, ‘Extinction des obligations, Paiement: Caractères généraux. Parties. Effets’ in Juris-Classeur civil, art. 1235 à 1248 , Fasc. 64 à 67, no. 59, p. 11. 18 Civ. 24 Jun. 1913, DP 1917.1.38. 19 Civ. (3) 23 Feb. 1972, Bull. civ. III, no. 126, p. 92. 20 Issa-Sayegh (n. 17), p. 10; Boris Starck, Henri Roland and Laurent Boyer, Droit civil, Les obligations, 3. Régime général, (5th ed, 1997), p. 63; Req. 7 Jun. 1937, DH 1937.427 (where the third party was held able effectively to intervene despite the agreement of the debtor and creditor to the contrary, as it was found by the lower court that the agreement had been ‘fraudulent’); Civ. 29 May 1953, D 1953.516 (where the third party had an interest in intervening and the parties no legitimate interest in refusing intervention). 21 Issa-Sayegh (n. 17), p. 10, citing Aubry and Rau (n. 8), no. 316, p. 221, note 2 (who disagree with Pothier in this respect on the basis that article 1236 does not so restrict third party paiement). 22 Cf. Pothier, Traité des obligations, Vol. 2, no. 500 p. 7 who does indeed refer to putting the creditor en demeure. On the rejection of this idea in the modern law, see Terre, Simler, Lequette (n. 2), p. 1004, ft. 1 noting the contrary position in German law found in B.G.B. § 293. For criticism of this rejection, see Cécile Robin, ‘La mora creditoris‘ 1998 Rev. trim. dr. civ. 607. 23 This procedure is known as “offres réelles avec consignation” and is provided for by art. 1257 et seq. C. civ. and arts. 1428 et seq. N. c. civ. proc. 24 Art. 1257 al 1 C.civ. According to Henri, Léon and Jean Mazeaud, Leçons de droit civil, Tome II, Vol. I, Obligations, théorie générale, (8th edn., 1991) by François Chabas, p. 954, n. 3 following J. Courrouy, “La consignation d’une somme d’argent est-elle un payement?” Rev. trim. dr. civ. 1990.23, even after consignation and court approval, the debtor’s discharge does not mean that there is paiement nor is there therefore an end to the relationship of obligation between the parties. 25 Terré, Simler, Lequette (n. 2), p. 1004. 26 Such a denial could be based on the idea that a creditor’s failure to accept tender of due performance would constitute breach of his obligation de loyauté and that this breach would mean that the creditor would not be allowed to terminate the contract for non-performance, to rely on the debtor’s own non-performance as a defence (the exception d’inexécution) nor recover damages: see Robin 1998 Rev. trim. dr. civ. pp. 611-612, 625 ff. 27 Subrogation by operation of law is known as subrogation légale. Subrogation may also take place by agreement, this being known as subrogation conventionnelle. 28 Arts. 2028 al. 1 & 2029 C. civ. Where joint debtors are liable solidairement (i.e. jointly and severally) payment in full by one gives rise to a right of recourse against the others to the limits of their own part share: art. 1214 C. civ. 29 A lien (droit de rétention) has been held opposable against third parties even if they are not themselves liable on the debt: Civ. (1) 7 Jan. 1992, Bull. civ. I, no. 4, p. 3. 30 Starck, Roland and Boyer (n. 20), pp. 41 ff. 31 Michel Cabrillac and Christian Mouly, Droit des sûretés (3rd ed., 1995), p. 195. 32 Cabrillac and Mouly (n. 31), p. 195 and see Civ. 25 Nov. 1891, DP 1892.1.261. 33 Two further situations are not dealt with in the text. First, where a third party pays another’s (false) debt, thinking the debt genuine, the third party may recover his paiement from the creditor as being undue: arts. 1235 al. 1, 1376 C. civ. Secondly, where a third party pays another’s (true) debt in his own name thinking himself the debtor (which he is not), then he may not recover against the true debtor(see Whittaker (n. 5), p. 411 and cases there cited), but he may recover from the creditor: Starck, Roland and Boyer (n. 20), p. 128. 34 Issa-Sayegh (n. 17), no. 62, p. 11 citing Com. 14.11. 1975, D 1976 IR 26. 35 Aubry and Rau (n. 8),p. 222, n. 9. Art. 1250 al. 1 C. civ. provides that subrogation conventionelle must be expressly provided for and made at the same time as performance of the debtor’s obligation. 36 Aubry and Rau (n. 8), p. 220; Marcel Planiol and Georges Ripert, Traité pratique de droit civil français (2nd. ed., 1954) T. VII, Obligations, p. 552. Paiement may also be made to the creditor under a contract between the debtor and the third party such as insurance. 37 Civ. (1) 15 May 1990, JCP 1991.II.21628 note Bruno Petit, D 1991. 538 note G. Virassamy. 38 Petit (n. 37), p. 36. 39 Cf. Petit,(n. 37), p. 37. 40 Civ. (1) 2 Jun. 1992, D 1992 somm. 407 note Philippe Delebecque. 41 Civ. (1) 23 Feb. 1999, pourvoi no. 95-18.860 (unreported). 42 Delebecque (n. 40). 43 Cabrillac and Mouly (n. 31), p. 194. 44 Art. 1984 C. civ. 45 Art. 1999 C. civ. 46 Again, in the case of payment in money this assumes that the third party paid from his own resources. In this respect, the presumption is that a person who pays in his own name does so from his own resources, but this presumption may be rebutted. Thus, if the court finds that the third party paid with the debtor’s own resources, clearly he cannot be reimbursed: Req. 18 Feb. 1901, DP 1901.1.303. 47 Art. 1375 C. civ. An early application of gestion d’affaires in this context, see Civ. 8 Jan. 1862, DP 1863.1.75. For an introduction to gestion d’affaires in English, see Whittaker (n. 5), pp. 403-406. 48Gestion d’affaires may arise whether or not the gérant acts in the name of the maitre d’affaires, though if he acts in his own name in entering legal transactions with third parties, any recourse of the latter is in principle available only against the gérant and not the maître d’affaires: Jacques Flour and Jean-Luc Aubert, Les obligations, 2. Le fait juridique, (6th ed., 1994), no. 17, p. 22. Trib. Inst.Strasbourg 9 Jul.1954, GP 1954.2.350 is an example of its application, where no mention is made of whether the performance was or was not made in the debtor’s name. Cf. Issy-Sayegh (n. 17), no. 67, p. 12 and Starck, Roland and Boyer (n. 20), p. 63 who both assert that performance by a third party other than in the name of the debtor can give rise to recovery only on the basis of enrichissement sans cause. 49 Cf. Virassamy (n. 37), p. 541 and Marc Billiau obs. JCP 1992.I.3632 no. 6 who criticise the position there taken by the Cour de cassation on the ground that this issue is thereby avoided. The issue of utility is judged from the point of view of the would-be gérant. to whomintervention must appear to be useful: Boris Starck, Henri Roland and Laurent Boyer, Droit civil, Les obligations, 1. Le contrat, (6th ed, 1998), p. 750; Flour and Aubert (n. 48), p. 16. 50 Philippe Derouin, ‘Le paiement de la dette d’autrui, Répétition de l’indu et enrichissement sans cause’ D 1990. Chron. 1. 51 Malaurie and Aynès (n. 6), p. 530 (concerning gestion d’affaires generally) and Com. 21 Nov. 1978, Bull. civ. IV no. 271, p. 223 (where the lack of consent stemmed from a prior contract term between the debtor and the third party). 52 Alain Bénabent, Droit civil, Les obligations (4th edn.,1994), p. 217. An example of a refusal being illegitimate may be found in Civ. (1) 11 Feb. 1986, GP 1986.2. somm. 507 note A. Piédelièvre in which a son paid the monthly installments of his father’s loan, despite the father’s opposition; the court accepted that this was a case of gestion d’affaires for the father’s opposition was not justified by the family’s interest. 53 The principle of the subsidiarity of the action de in rem verso rules it out only where the law provides an effective remedy or where such a remedy is barred by a legal obstacle: Whittaker (n. 5), pp. 416 -417. 54 Civ. (1) 1 Feb. 1984, D 1984.388. It is to be noted that the subsidiary nature of the action de in rem verso did not prevent the former husband’s recovery, despite his possessing a claim for répétition de l’indu from his former wife (who was insolvent). 55 On which see Whittaker (n. 5), pp. 413 ff. 56 Virassamy D 1991. p. 541; Petit JCP 1991.II.21628 p. 37. 57 e.g. Civ. (1) 3 Apr. 1979, D 1979.IR.408 (where the third party was held to act “dans son proper intérêt et à ses propres risques“). 58 Derouin D 1990. Chron. 1, pp. 201-202 and see for a general affirmation of the availability of recovery on the basis of enrichissement sans cause despite the claimant’s negligence: Civ. (1) 11 Mar. 1997, D 1997.407 note Marc Billiau. It would seem that the effect of the latter decision is that the payer’s negligence does not bar recovery on the ground of enrichissement sans cause, but this leaves the possibility of set-off by the debtor on the ground of a claim for delictual fault based on the third party’s negligence under art. 1382 C. civ. (on this in general terms, see Billiau, ibid. at p. 409). 59 See G. H. Treitel, The Law of Contract (9th. edn., 1995), pp. 671 ff. 60 Treitel (n. 59), pp. 672-673. Cf. Chitty on Contracts, (28th ed., 1999) §§ 20-079 — 20-081 which accepts the substance of this position, but does not distinguish sharply between the two. 61 Below near note 69. 62 Read v. Goldring (1813) 2 M. & S. 86. 63 G. H. Treitel, Remedies for Breach of Contract, A Comparative Account (1988), p. 41; Chitty on Contracts,§ 22-083. 64 Chitty on Contracts, § 22-084. 65 Some contend that as a matter of authority, the performance of obligations other than to pay money does discharge a debt without the authority of the debtor: Andrew Burrrows, The Law of Restitution (1993) p. 223, citing Gebhardt v. Saunders [1892] 2 QB 452. 66 Peter Birks, An Introduction to the Law of Restitution (revised edn. 1989), pp. 189-190; Robert Goff and Gareth Jones, The Law of Restitution (5th ed., 1998), pp. 16-17. 67 See Peter Birks and Jack Beatson, Chap. 7 “Unrequested Payment of Another’s Debt” with a postscript by Jack Beatson in Jack Beatson, The Use and Abuse of Unjust Enrichment, Essays on the Law of Restitution (1991). 68 Daniel Freidmann, ‘Payment of another’s debt’ (1983) 99 L.Q.R. 534; Burrows (n. 65), p. 222 et seq. 69 See especially, Beatson (n. 67), pp. 201-202. Goff and Jones (n. 66), p. 129 take a different view again, accepting the general position as regards discharge, but arguing for restitution against the debtor by means of subrogation in all cases except those involving maliciously officious intervention. 70 Freidmann (1983) 99 L.Q.R. 534, 539; Beatson (n. 67), pp. 201-202. 71 For their analysis see Birks and Beatson (n. 67). 72 For the leading authority on this approach see Falcke v. Scottish Imperial Insurance Co. (1886) 34 Ch. D. 234. 73 Beatson (n. 67), p. 203. 74 See generally, Whittaker (n. 5), pp. 418 ff. 75 See the observations of Lord Hoffmann in Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1997] 2 W.L.R. 898, 902-903. 76 Bénabent (n. 52), p. 177. 77 See generally, Nicholas (n. 2), pp. 216 ff; Whittaker (n. 5), p. 348. 78 The legal basis for the imposition of astreintesis now to be found in Loi no. 91-650 of 9 July 1991, arts. 33 – 37. 79 “Toute obligation de faire ou de ne pas faire se résout en dommages et intérêts, en cas d’inexécution de la part du débiteur.” Somewhat oddly, though, art. 1184 C. civ., which is concerned with the availability of judicial termination of a bilateral contract on the ground of the debtor’s serious non-performance, assumes that the injured party can force the debtor to perform his obligation if this is possible: art. 1184 al.2. 80 “Le créancier peut aussi, en cas d’inexécution, être autorisé à faire exécuter lui-même l’obligation aux dépens du débiteur.” 81 Patrick Wéry, L’exécution forcée en nature des obligations contractuelles non pécuniaires (1993), p. 88, who notes that the faculté de remplacement was not discussed by Pothier as a general mechanism: ibid., pp. 66-67. 82 Philippe Simler, ‘Classification des obligations, Distinction des obligations de donner, de faire et de ne pas faire’ Juris-Classeur civil, art. 1136 à 1145, p. 28. For an example of a contract of supply of ascertained property, see Com. 20 Jan. 1976, D 1976 somm. 36. 83 Loi no. 91-650 of 9 July, 1991, art. 82. 84 Yves Chartier note to Trib. G. Inst. Dunkerque 3 Oct. 1984, GP 1985.1.154. 85 For the competing views, see Wéry (n. 81), p. 326 ff especially at p. 333. 86 Simler (n. 82), no. 139, p. 29 “Le juge saisi d’une telle demande d’autorisation apprécie son opportunité“. Wéry (n. 81), pp. 329-330 notes Civ. 20 Dec. 1820, S 1819-1821.349 as the first decision to this effect, the court stating that “les articles invoqués du Code civil et particulièrement l’article 1142 [ sci. 1144] sont conçus en termes facultatifs qui laissent aux juges le pouvoir d’adopter le mode d’indemnité qui leur paraît le plus juste et le plus favourable à l’intérêt des parties.“ 87 Simler (n. 82), no. 136, p. 28. 88 Simler (n. 82), no. 139, p. 29, citing Req. 23 Mar. 1909, DP 1910.1.343. 89 Wéry (n. 81), no. 188, p. 261. 90 Wéry (n. 81), no. 199, p. 274. 91 Art. 1184 al. 3 C. civ. 92 Civ. (1) 17 May 1954, GP 1954.2.82. 93 For an older example, see Marcel Planiol, Traité élémentaire de droit civil, T. 2 (6th ed., 1912), p. 150. For more recent use, see Terré, Simler, Lequette (n. 2), p. 1004; Francis Kernaleguen,’Offres de paiement et cconsignation,’ arts. 1257 à 1264, Juris-Classeur civil, p. 3; Robin 1998 Rev. trim. dr. civ., p. 608. For the procedure of offres réelles,see above, p. 00. 94 Terré, Simler and Lequette (n. 2), p. 485. The courts have recognised that such a contractual right to terminate must be exercised in good faith, on which see Whittaker (n. 5), p. 353. Such a clause in a consumer contract is subject to a test of fairness under art. L 132-1 Code de la consommation (implementing in French law Council Directive 93/13 of 5 April 1993 concerning unfair terms in consumer contracts). 95 Cf. the position in Belgian law, where clauses de remplacement are current both in private and administrative law contracts: Wéry (n. 81), no. 204 ff, p. 281 ff. 96 For these, see Simler (n. 82), nos. 140-141, p. 29. A special legislative example may be found in art. 1792-6 al. 4 C. civ. relating to the garantie de parfait achèvement in contrats d’entreprises. 97 Soc. 7 Dec. 1951, D 1952.144 and see Malaurie and Aynès (n. 6), pp. 592-593. 98 There may be a further way in which the creditor may avoid this latter difficulty, for it has been said that the urgency (if it is exists) also justifies rejection by the creditor of any offer by the debtor to perform: Simler (n. 82), no. 140, p. 29. 99 See above, text after note 58. 100 Above, , text after note 58. 101 Above. 102 Simler (n. 82), no. 91, p. 20. 103 Art. 1153 C. civ. (as amended) provides the general rules for payment of interest for delay in payment of a money sum: exceptions are made where the debtor is in bad faith and in the context of commercial law and suretyship. Arts.1244-1 — 1244-3 C. civ. (as amended in 1991) give to the court a general discretion to allow a debtor of a money obligation time to pay (a délai de grâce) of up to two years, this discretion being exercised taking into consideration the situation of the debtor, the needs of the creditor, the relative good or bad faith of the parties and their circumstances more generally (such as age or health): Starck, Roland and Boyer (n. 20), pp. 89 ff. 104 Treitel (n. 59), pp. 894 ff. 105 As regards interest on judgment debts, this is now contained in Supreme Court Act 1981, s. 35(A). As regards interest on commercial debts before judgment, see the Late Payment of Commercial Debts (Interest) Act 1998. 106 These phrases describe the so-called second limb of the test of remoteness of damage of the rule in Hadley v. Baxendale (1854) 9 Exch. 341. An example of recovery in this type of situation may be found in Wadsworth v. Lydall [1981] 1 W.L.R. 598. 107 See Treitel (n. 59), pp. 919 ff and see Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1997] 2 W.L.R. 898, 903 per Lord Hoffmann. 108 British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd. [1912] AC 673. Another way of looking at mitigation is in causal terms, so that it can be said that any losses suffered by a creditor after an unreasonable failure to mitigate are caused by this failure to mitigate, rather than by the debtor’s breach. 109 Of course, this does not mean that all creditors have to go to court to recover compensation in this way, but any settlement agreed to between the debtor and the creditor is made on the basis of judicial attitudes to mitigation. 110 Chitty on Contracts § 27-098. 111 Cf. Donald Harris, Remedies in Contract and Tort (1988): “[i]t is in the interests of contract-breakers (as well as of society) that P [the promisee], the person in the best position to minimise the loss, should be encouraged to try to do so. P should be indemnified against his expenses in any reasonable attempt to mitigate, since such attempts are usually successful.” 112 Chitty on Contracts, § 26-054. © 2000 S. Whittaker. This HTML edition © 2000 University
of Oxford. What is the remedy of the debtor if the creditor to whom tender of payment has been validly made refuses without just cause to accept it?If the creditor to whom tender of payment has been made refuses without just cause to accept it, the debtor shall be released from responsibility by the consignation of the thing or sum due.
What is the remedy of the creditor if debtor fails to perform his obligation to deliver a generic thing?1096 entitles the creditor to compel the debtor to make delivery or, if the thing is indeterminate or generic, to demand specific performance at the debtor's expense. Art. 1098 provides that if the obligor does not do something that is was obliged to do then, it shall be enforced at its own expense.
What are the remedies of the creditor in case of breach?There are several remedies for breach of contract, such as award of damages, specific performance, rescission, andrestitution. In courts of limited jurisdiction, the main remedy is an award of damages.
What is the legal remedy available to the creditor in case one of the debtors does not comply with his undertaking in a joint indivisible obligation?If one of the debtors fails to perform, the obligation can no longer be fulfilled because the prestation or object is indivisible. In indivisible prestation, division is not possible. If such is the case, the obligation is then converted to an indemnity for damages.
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