Business Contracts

Judicial rescission, which was the primary means of rescinding a contract under former Article 1184 of the Civil Code, is the last available remedy for terminating a contract under Article 1224 of the Civil Code, in the event of serious non-performance . 
Prior to the reform of contract law, former Article 1184 of the Civil Code stipulated: “A resolutive condition is always implicit in bilateral c …

Judicial rescission

Judicial rescission, which was the primary means of rescinding a contract under former Article 1184 of the Civil Code, is the last available remedy for terminating a contract under Article 1224 of the Civil Code, in the event of serious non-performance . 

Prior to the reform of contract law, former Article 1184 of the Civil Code stipulated: “A resolutive condition is always implicit in bilateral contracts, in the event that one of the parties fails to fulfill his or her commitment. In this case, the contract is not automatically rescinded. The party to whom the commitment has not been fulfilled has the choice of either forcing the other party to fulfill the agreement, where this is possible, or seeking rescission with damages . Rescission must be sought in court, and the defendant may be granted a time-limit depending on the circumstances”.

In application of this provision, the courts have required that non-performance be serious in order to justify the rescission of a contract. The Court of Cassation has held that, in the absence of a sufficiently serious fault, the project owner is not entitled to seek judicial rescission of a works contract to the detriment of the contractor . A contract for services may not be terminated to the detriment of the contractor on the grounds that he was late in obtaining a building permit, since he was responsible for filing the application, and no deadline had been fixed in the contract for obtaining said permit, and where he consulted undertakings and obtained estimates enabling the project owner to determine the foreseeable cost of construction, so that the failings of which he is accused (particularly cursory plans containing only a few general measurements and incomplete estimates) are not sufficiently serious to justify such a penalty . Nor is judicial rescission of a contract for services relating to the construction of a cutting station justified, even if the contractor has not fulfilled his obligation to deliver, since this failure, which occurred after acceptance of his work, is not sufficiently serious in view of the many difficulties in performing the contract, despite the client's proven competence in the field of food packaging . On the other hand, a contractor who fails to meet his results-based obligation to deliver and install a framework conforming to the contractual stipulations is committing a breach of contract sufficiently serious to warrant rescission of the contract . Judicial rescission is also justified when the contractor acknowledges that the work performed was not carried out in accordance with the prevailing standards and must be completely redone, and that the resulting defects, despite the remedial measures taken by the project owner, are so serious as to amount to total non-performance of the contract .

Judicial rescission may be ordered to the sole detriment of the debtor of the unfulfilled obligation, whether in the person of the contractor or the project owner. Thus, according to the Court of Cassation, where the project owner has failed in his obligation to determine a site which would enable the work to be completed within the agreed timeframe, and where this failure is the sole cause of the delay and subsequent abandonment of the site, the gravity of the fault is established and justifies rescission of the contract to his sole detriment .

While the creditor of the non-performed obligation is not entitled to obtain judicial rescission in the case of insufficiently serious non-performance, the situation is different when the non-performance is attributable to both parties . In this case, the court may declare the contract to be terminated with mutual prejudice, provided that the parties' respective breaches of their obligations have caused each of them an equal harm of such a nature as to entail total set-off between the damages to which they could reciprocally claim . In the Court of Cassation's opinion, a works contract should also be rescinded to the mutual detriment of the parties, even if only one of them has breached its obligations, when neither of them wishes to continue performance of the contract .

Now, according to Article 1227: “ Rescission may, in any event, be sought in a court of law”. The creditor may therefore apply to the court “to have the contract rescinded, even if a resolutory clause has been provided for in the contract, or even if a procedure for rescission by notice has been initiated ”  , or in the event of serious non-performance, as provided for in Article 1224. According to the commercial chamber of the Court of Cassation , serious non-performance does not necessarily mean “ wrongful non-performance ”. According to the Paris Court of Appeal, judicial rescission, when subject to the demonstration of a sufficiently serious contractual non-performance, is characterized either by a breach of an essential obligation of the contract, or by the substantial damage suffered by the creditor, or even by the debtor’s bad faith or unfair conduct . According to case law, judicial rescission of a contract for work is justified where the contractor has seriously failed to meet his results-based obligation, the asphalt intended for parking and traffic use that he installed having to be completely demolished and rebuilt , or where the defects found in the equipment are sufficiently serious to prevent its normal use .

Article 1228 completes this provision, stating: “The court may, according to the circumstances, find or order that the contract be rescinded or performed, possibly granting a deadline to the debtor, or award only damages”. In the event of judicial rescission, the end of the contract takes effect “either on the date fixed by the court or, failing that, on the date of the writ of summons” (Art. 1229 Civil Code).

Art. 1224, Civil Code: “Rescission results either from the application of a resolutory clause or, in the event of sufficiently serious non-performance, from notification by the creditor to the debtor or from a court judgment”.

CA Lyon, 30 November 2020, LawLex202200004141JBJ.

Cass. 3e civ. 6 September 2018, LawLex202200003806JBJ, ruling that if, following the submission of the expert appraiser's report, neither of the parties has any serious intention of continuing with the performance of the contract for services, the works contract should be terminated to their mutual detriment, even if only one of them has failed to meet its obligations.

Report to the President of the Republic on Ordinance No 2016-131 of 10 February 2016 reforming the law of contracts, the general regime and the proof of obligations, p. 19.; Cass. com., 9 April 2025, LawLex202500002844JBJ.

Cass. com, 18 January 2023, LawLex202300012683JBJ: a court of appeal cannot rule that the manager of a hotel is not entitled to rescission of the contract for catering services between him and the company in question, and to restitution of the deposit paid, insofar as the latter's failure to perform its obligation was caused by an external factor, namely the cancellation of the trade show by a third party due to the Covid pandemic, whereas judicial rescission is not contingent on fault-based non-performance.

CA Paris, 13 May 2022, LawLex202400007562JBJ.

CA Rennes, 12 September 2024, LawLex202400007557JBJ.

CA Douai, 19 September 2024, LawLex202400006906JBJ. But see CA Douai, 26 September 2024, LawLex202400007396JBJ.

Cass. 3e civ, 24 May 2018, LawLex202300002991JBJ, specifying that the rescission of an architect's contract can only be granted in the event of non-performance or inadequate performance of the services provided from the outset, so that a court of appeal cannot impose this sanction when it has found that the work carried out under the project management of the respondent was compliant and had been accepted.

CA Besançon, 1 April 2010, LawLex202200006748JBJ.

CA Versailles, 7 September 2021, LawLex202200004226JBJ.

CA Riom, 22 September 2020, LawLex202200006734JBJ.

CA Aix-en-Provence, 7 April 2022, LawLex202300003001JBJ, ruling that the contract for uservices should be terminated because the garage owner was unable to start up the motorcycle entrusted to him for repair, without however finding any fault on his part, since the customer, who decided to put an end to the work by collecting the motorcycle, did not demonstrate that the garage owner had failed to carry out the work which they had agreed to as it progressed, nor that the condition of the motorcycle, which was old and non-functioning, had deteriorated as a result of the garage owner's work.

Cass. 3e civ, 2 July 2008, LawLex202300003002JBJ.

Business Contracts

329. Judicial rescission

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

329. Judicial rescission

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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