Business Contracts

Initially foreseen for the benefit of the purchaser by Article 1610 of the Civil Code, which stipulates that “if the seller fails to make delivery within the time agreed between the parties, the purchaser may, at his discretion, request that the sale be rescinded, or that he be placed in possession, if the delay is attributable solely to the seller”, since the reform of contract law, specific perf …

Specific performance (exécution forcée)

Initially foreseen for the benefit of the purchaser by Article 1610 of the Civil Code, which stipulates that “if the seller fails to make delivery within the time agreed between the parties, the purchaser may, at his discretion, request that the sale be rescinded, or that he be placed in possession, if the delay is attributable solely to the seller”, since the reform of contract law, specific performance of the contract has been a possible remedy for non-performance, for all types of contracts. 

Under Article 1217 of the Civil Code, “the party in respect of whom the obligation has not been performed, or has been performed incompletely, may [...] seek the compulsory performance in kind of the obligation”. Thus, in the event of non-payment on the due date, Article 1221 provides that “the creditor of an obligation may, after formal notice, pursue its performance in kind, unless such performance is impossible or there is a manifest disproportion between its cost to the debtor in good faith and its interest to the creditor”.

The provision codifies the right to seek specific performance of an obligation, but limits it in cases of impossibility of performance, as already recognized by case law under former Article 1184 of the Civil Code, by extending it to economic impossibility of performance resulting from a manifest disproportion between the cost of specific performance for the debtor in good faith and its interest for the creditor. The aim of this new exception is to prevent the debtor from being condemned to compulsory performance at a high cost, without any real benefit to the creditor, whereas an award of damages could have provided adequate compensation at a much lower price.

The concept of impossibility has been clarified by case law. It may be legal, material or moral. Legal impossibility is generally the result of a judicial decision, for example when the court grants a grace period. It may also be statutory or administrative. Material impossibility means that the service cannot be performed due to a force majeure event. This is the case for example when the obligation to deliver is rendered impossible by the ceasing of production of the product sold . Finally, moral impossibility may be linked to the personal nature of the contract ("intuitu personae") or to the individual freedom of the debtor.

Article 1222 of the Civil Code supplements the provisions of Article 1221 by adding that: “After having served formal notice, the creditor may also, within a reasonable time and at a reasonable cost, himself have the obligation performed or, with the prior authorization of the court, destroy what has been done in breach of it. He may ask the debtor to reimburse the costs incurred to this end”.

Specific performance of a contract of sale may be sought by either the seller or the buyer. The seller seeks specific performance when the buyer fails to pay the agreed purchase price. The courts consider that the beneficiary of an unfulfilled contractual obligation to pay a sum of money is always entitled to prefer payment of the price to payment of damages or rescission of the contract. Consequently, a court of appeal, having dismissed all grounds for invalidating the contract, cannot order the purchaser to pay damages to the seller on the sole ground that the parties did not intend to perform their mutual undertakings . Where the purchaser requests that the seller pay the price, the court of appeal may order the purchaser to pay damages to the seller on the sole ground that the parties did not intend to perform their mutual undertakings. 

When the purchaser seeks to compel the seller to perform the contract in kind, he requires the seller to supply the thing agreed in the contract. In this case, the court may oblige the seller to replace the item with one that conforms to the contractual stipulations, or to repair the item so that it conforms. Specific performance of the contract of sale may also be subject to a penalty . If specific performance is not possible, performance is by equivalence .

Cass. com., 5 October 1993, LawLex202200000832JBJ: The seller of a vehicle who is unable to perform his obligation in kind because of the ceasing of production of the model of the vehicle in question, may be required to perform his obligation of delivery in kind by paying his purchaser an indemnity equivalent to the current value of the item sold.

Cass. 1re civ, 9 July 2003, LawLex202300004849JBJ, stating that the creditor of an outstanding contractual obligation to pay a sum of money is always entitled to prefer payment of the price to damages or rescission of the agreement, so that, having ruled out any basis for voiding the contract, a court of appeal cannot order the buyer to pay damages to the seller, on the grounds that the parties did not intend to perform their reciprocal commitments.

Cass. com. 26 February 1991, LawLex202200003500JB: a court of appeal, ruling in interim proceedings, is competent, in accordance with Article 873 paragraph 1 of the Code of Civil Procedure, to order, subject to a fine, the compulsory performance of the seller's obligation to deliver in order to prevent imminent prejudice; Cass. 1re civ., 16 January 2007, LawLex202200006932JBJ, stating that the imposition of prohibition and withdrawal measures, subject to a fine, intended to ensure the compulsory execution of an agreement and compliance with the agreed undertakings, falls within the powers of the trial courts, which are required to adjudicate the matter, as determined by the claims of the parties, in accordance with the rules of law applicable thereto.

Cass. com. 5 October 1993, LawLex202200000832JBJ, stating that if the seller of a bus is unable to deliver it, he must be ordered to fulfil his obligation to provide delivery in cash, based on the current value of the bus sold.

Business Contracts

242. Specific performance (exécution forcée)

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242. Specific performance (exécution forcée)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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