Business Contracts

In accordance with Article 1231-1 of the Civil Code , a contractor's liability presupposes: i) a fault on the part of the contractor, which may consist of total or partial non-performance, poor performance or delay in performance; ii) damage suffered by the project owner; and iii) a causal link between the fault and the damage. Proof of contractual breach is determined by the intensity of the cont …

Liability in the event of non-performance

In accordance with Article 1231-1 of the Civil Code , a contractor's liability presupposes: i) a fault on the part of the contractor, which may consist of total or partial non-performance, poor performance or delay in performance; ii) damage suffered by the project owner; and iii) a causal link between the fault and the damage. Proof of contractual breach is determined by the intensity of the contractor's obligation. When the contractor undertakes to do his utmost to fulfill his obligation, he is bound by a best-efforts obligation. Generally speaking, such an obligation presupposes a contingency or the active role of the client . When he undertakes to achieve a specific result, he is bound by a results-based obligation, which in principle presupposes full control over the performance of his work. For example, the operator of an automatic washing machine is bound by a results-based obligation with regard to the performance of his service, when the very principle of using the automatic machine is sufficient to demonstrate that the operation can be carried out by any person, without any particular qualification or skill, since the automated system is expected to prevent any hazard in the course of the operation, by guaranteeing that the contractually promised result will be achieved .

In the case of a best-efforts obligation, the project owner will have to prove that the contractor did not make every effort to perform, in other words, that he committed at least one act of carelessness or negligence. In the case of results-based obligations, the project owner simply has to prove that the contractual result has not been achieved.

Although case law is not uniform on this issue, in principle, the courts consider that when the contractor's obligation consists of an intellectual service, such as advice, organization, care or performance involving a certain degree of unpredictability, he is only bound by a best-efforts obligation. A lawyer, for example, is only bound by a best-efforts obligation to provide legal assistance, regardless of whether or not he or she has been awarded legal aid . Similarly, an advertising agency that fails to organize its client's advertising campaign with the requisite care is in breach of its best-efforts obligation . Architects are liable for any breach or improper performance of their obligations, within the limits of the tasks entrusted to them and the obligations set out in the contract with the project owner. According to the Lyon Court of Appeal, the architect is bound by a best-efforts obligation if he is simply responsible for site supervision  or if his main service consists solely of providing advice. A doctor is also bound only by a best-efforts obligation when he installs equipment on a patient . Similarly, the contract by which a horse is entrusted to a trainer constitutes a contract for services, which entail a duty of care on the part of the trainer to use his knowledge and skill to the best of his ability, in order to improve the horse's sporting performance .

On the other hand, when the contractor's work involves a tangible object, or more generally when his service is of a material nature, he is bound by a results-based obligation to the project owner. For example, a contractor responsible for repairing the courtyard of a building is bound by a result-based obligation towards the project owner, so that he is obliged to take back or compensate any work he has not carried out in accordance with the rules of the trade, and which has been the subject of reservations by the project owner . In the context of a contract for services, a garage owner is bound by a results-based obligation so that he incurs liability when his intervention to replace the cylinder head has not been implemented in accordance with the prevailing standards of the trade, and has resulted in the vehicle's engine being disabled . Trial courts generally consider that the garage owner's obligation to produce a particular result under the contract for undertaking services entails both a presumption of fault and a presumption of causality between the fault and the damage . However, in order to be contractually liable, the alleged harm must be caused by the repairer's failure to meet his obligation of result, and it is up to the vehicle owner to prove that the damage complained of was caused by the repairer's intervention . Thus, according to the Court of Cassation, it is up to the party seeking the liability of a garage repairer who has previously worked on his vehicle, following the occurrence of a new breakdown, to provide proof that the alleged malfunctions are due to a defect already existing on the day of the garage repairer's intervention, or are related to it . Similarly, a court of appeal cannot hold that the replacement of a vehicle's turbo-compressor, only one month after its general overhaul, commits the garage owner to contractual liability, without establishing that the turbo-compressor defect pre-existed his intervention and was detectable and reparable at a lower cost than that of its replacement, or demonstrating that the damage originated from the garage owner's failure to meet his obligation to achieve a specified result . Where the garage owner incurs liability, the right to reimbursement of the cost of repairing the damaged item is limited to its replacement value . By the same token, a carwash undertaking, as a lessor of work, is strictly liable only for damage caused by a breach of its results-based obligation so that the onus is on the customer to show that the damage to his vehicle was caused by the service provided .

As the Court of Cassation recently recalled, the contractor may be ordered to pay damages, where appropriate, either for non-performance of the obligation, or for delay in performance, unless he can justify that the non-performance is due to a cause beyond his control, provided there is no bad faith on his part . Thus, a contractor who is twenty-nine months behind schedule in the performance of his work as a result of defects and non-conformities attributable to him, must be ordered to compensate the project owner for the non-material harm resulting from the failure to perform his contractual obligation . Incomplete performance by the contractor also constitutes a breach of contract justifying, where appropriate, a right to damages .

In order to be released from any contractual liability, the contractor must, in accordance with the provisions of Article 1231-1 of the Civil Code, prove that the performance of his obligation was prevented by force majeure. In reality, the courts accept an outside cause, i.e. not only force majeure, which is fully exonerating, but also the victim's fault. For example, the operator of an automatic carwash is required to provide his customer with equipment that is in perfect working order, reliable and safe, and capable of cleaning the surface of the vehicle's bodywork, leaving the sheet metal and paint covering in the same condition as when it arrived, so that if he fails to achieve this result, he can only be exonerated by proving the existence of an extraneous cause . In the absence of a clear-cut fault on the part of the victim, or of an extraneous cause, the operator cannot be exonerated from liability under a contract for services, when the machine has clearly malfunctioned, firstly during the washing process, then when the program which had begun is suddenly interrupted for no apparent reason, nor even one which has since been explained, before being restarted even though the vehicle was no longer correctly positioned . On the other hand, the courts reject third-party liability, which, unless it constitutes force majeure, cannot be exempted .

Art. 1231, Civil Code: “The debtor is ordered, where applicable, to pay damages either for non-performance of the obligation, or for delay in performance, unless he proves that performance was prevented by force majeure”.

CA Aix-en-Provence, 23 September 2021, LawLex202200006732JBJ, holding that, in view of the service agreed between the parties according to an accepted estimate, the plaintiff's passive role in carrying out the contract for services, the lack of uncertainty and the provisions of new Article 1231 of the Civil Code, under which contractors are subject to a result-based obligation, the company in question must be held liable insofar as a bailiff's report of defective workmanship or, at the very least, non-performance in the installation of the swimming pool proves that the contractual objective has not been achieved, that the harm is characterized by the poorly performed service, and thus that a causal link has been established between the harm and the event giving rise to the harm.

CA Bordeaux, 16 September 2021, LawLex202200004527JBJ; 12 May 2022, LawLex202200004519JBJ.

CA Toulouse, 19 October 2020, LawLex202200004225JBJ.

Cass. 1re civ, 31 October 2012, LawLex202200004917JBJ, stating that a customer who has had the gearbox of his vehicle repaired by a garage is not entitled to compensation from the garage for new breakdowns occurring eleven months later, since the vehicle covered almost 12,000 kilometers during that period - a distance, which, according to the expert, cannot normally be covered with oxidized fork shafts - and that he did not prove that the oxidization, which caused the damage to the gearbox, pre-existed the garage's intervention, nor that the garage should necessarily have discovered it at that time.

Cass. 1re civ, 4 May 2012, LawLex202200004911JBJ.

CA Bordeaux, 16 September 2021, LawLex202200004527JBJ.

CA Metz, 14 November 2019, LawLex202200004600JBJ; CA Bordeaux, 16 September 2021, LawLex202200004527JBJ.

Cass. 3e civ, 16 November 2022, LawLex202300000927JBJ.

Cass. 3e civ, 16 November 2022, LawLex202300000927JBJ, cited above.

Cass. 1st civ. 19 June 2008, LawLex202200003665JBJ.

CA Reims, 26 July 2005, LawLex202200008890JBJ.

CA Reims, 26 July 2005, LawLex202200008890JBJ, specifying that the operator of an automatic carwash must provide his customer with equipment that is in perfect working order, is reliable and safe, and is capable of cleaning the surface of the vehicle's bodywork, leaving the sheet metal and paintwork covering it in the same condition as when it arrived.

CA Riom, 22 September 2020, LawLex202200006734JBJ: a fault on the part of another project owner, which cannot be characterized as a extraneous cause constituting the act of a third party, cannot be invoked by a contractor who has failed in his result-based obligation to deliver and install a framework in compliance with the contractual stipulations, to exonerate himself from his contractual liability towards the project owner.

Cass. 1re civ, 7 October 1998, LawLex202300001176JBJ.

Cass. com, 9 October 1990, LawLex200300002899JBJ.

CA Lyon, 30 November 2020, LawLex202200004141JBJ.

CA Dijon, 4 October 2011, LawLex201200001560JBJ.

CA Angers, 9 February 2010, LawLex202200004510JBJ.

CA Limoges, 15 April 2013, LawLex202200008407JB; Cf. CA Amiens, 20 May 2021, LawLex202200009840JB, holding that the obligation incumbent on the contractor, entrusted with the exterior restoration of a building, entails both a presumption of fault and a presumption of causality between the fault and the damage, so that it is a more rigorous best efforts obligation. 

CA Agen, 28 April 2003, LawLex202200009862JBJ.

Business Contracts

302. Liability in the event of non-performance

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302. Liability in the event of non-performance

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Les décisions de justice citées dans ce paragraphe :

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