Breach of Contract in France: The Five Remedies and How to Choose

Breach of contract in France: the five remedies and how to choose

When a French counterparty stops performing, the governing principle is that the victim must not make justice for itself: its rights run exclusively through the legal machinery of Articles 1217 to 1231-7 of the Civil Code. That machinery is generous, five distinct remedies, most of them exercisable without going to court first, but it is procedural to its bones. The party that suspends, terminates or deducts without observing the sequence becomes the party in breach.

The remedies combine deliberately. Sanctions that are not incompatible may be cumulated, and damages may always be added to any of them (C. civ. Art. 1217). Stipulating one sanction in the contract does not exclude the others: late-payment penalties did not prevent the victim from also suspending its own performance through the exception d'inexécution (exception of non-performance) (Cass. 3e civ., 14 févr. 2019, n° 17-31.665). This article works through the preliminary step of establishing the breach, then each remedy with its conditions, and the elections that exclude other remedies.

What do you want from your defaulting counterparty?

First establish the breach, then act

An obligation is unperformed the moment it has not been performed at the agreed due date, whether the failure is total, partial or a matter of defective performance, and it is for the debtor, not the creditor, to prove that performance took place in time (Cass. com., 15 sept. 2009, n° 07-21.842). The debtor's diligence changes nothing: breach is constituted even where the debtor tried to avoid it or offered to give up its own counterpart, and a deliberate refusal to perform needs no proof that the debtor knew the damage it would cause (Cass. 1e civ., 31 janv. 2018, n° 16-25.522). But for the heavy remedies, those that touch the contract itself, the breach must be sufficiently serious, which in the absence of a contractual definition means it must strike the essential obligation (C. civ. Arts. 1219 and 1224); parties who want certainty define in the contract which failures count, as a termination clause does, and that definition then governs the analysis in place of the courts' own appraisal.

The near-universal precondition is the formal notice, the mise en demeure: required whenever the contract stipulates it, required by statute in many cases, and made by the courts a general precondition of invoking breach. Its dispensations are real but narrow: the contract excluded it, even implicitly; performance was already impossible (Cass. com., 18 oct. 2023, n° 20-21.579); the debtor let a strict deadline pass; the debtor declared its refusal to perform; urgency excluded it; or, on the facts, it would have been futile (Cass. com., 17 janv. 2024, n° 22-20.785). A creditor in doubt serves the notice: it costs a registered letter and preserves every remedy on the list. Once served, the notice establishes the breach definitively if performance does not follow within the time it allows (Cass. 1e civ., 13 mars 2024, n° 22-24.170), starts default interest running on money debts without proof of loss (C. civ. Art. 1344-1) and shifts the risk of the thing to the debtor (C. civ. Art. 1344-2). Until its inefficacy is established, the creditor can neither claim damages nor break the contract.

While the remedies are prepared, the prudent victim protects the recovery itself: any creditor whose claim appears founded in principle may seek judicial authorisation for a protective measure over the debtor's assets (C. exécution Art. L 511-1), the interim-relief judge can address imminent peril and manifestly unlawful disturbances and award provisional payment, and provisional mortgages, judicial pledges of the business and protective attachments guard against insolvency. Three further reflexes belong to the same stage: check the limitation and forfeiture periods whose expiry would extinguish the claim, warn any guarantors and prepare their call in warranty, and, where the counterparty is in insolvency proceedings, act at once to recover goods sold under the conditions that regime allows. Minimising one's own loss along the way is strongly advisable.

Remedy one: suspend your own performance

In a synallagmatic contract (a contract with reciprocal obligations), the party that has not yet performed may withhold its performance where the other side has not performed, or has refused to perform, its own obligation, provided the inexecution is sufficiently serious (C. civ. Art. 1219), a matter the courts appraise sovereignly, and provided the party invoking it proves the breach (Cass. 3e civ., 6 mars 2025, n° 22-16.539). The defence cannot be excluded by a clause declaring the counterparty's mission indivisible and the client bound for the whole (CA Paris, 26 sept. 2017, n° 17/00415), it can be opposed only within a contract with reciprocal obligations, not to obligations of statutory origin or by a third party to the contract, and it is unavailable where no obligation remains to be performed. The 2016 reform added an anticipatory version of the defence: performance may be suspended before any breach has occurred, where it is manifest that the counterparty will not perform at the due date and the consequences of that non-performance would be sufficiently serious for the suspending party, on condition that the suspension is notified as soon as possible (C. civ. Art. 1220).

The courts police the conditions strictly. The party suspending must have suffered prejudice from the failure it denounces (Cass. com., 25 mai 2022, n° 20-18.666), without needing to assert a monetary claim born of that failure (Cass. com., 20 nov. 2024, n° 23-19.552), must not itself be the origin of the default, must withhold an obligation of comparable importance to the one unperformed, must justify the failures invoice by invoice where it disputes several, and must confine itself to suspension: even a well-founded exception does not authorise breaking the contract off (Cass. com., 1 déc. 1992). What the remedy does not require is a prior formal notice (Cass. 3e civ., 18 sept. 2025, n° 23-24.005), and neither a penalty clause nor a termination clause excludes it. The contract may also be suspended judicially, notably for the temporary impossibility caused by a force majeure event (C. civ. Art. 1218), and even outside force majeure the courts have validated a suspension decided by a party where performance had become gravely and immediately harmful to it (Cass. com., 1 déc. 1998). Once the cause of suspension ends, the contract resumes exactly as it stood: its duration is not extended, and no new condition, such as advance payment, can be imposed by one party on the other.

Providing for suspension in the contract

In practice, suspension is above all organised by the parties themselves, who fix its causes and effects. A well-drafted suspension clause settles four points: which obligations are suspended and which are maintained, confidentiality and non-competition being obligations to keep alive; whether the party deprived of the agreed performance may turn to a third party as a temporary replacement; the conditions of resumption, including an outside time limit to avoid an indefinite suspension and a mechanism for recording that the cause has ended, with catch-up arrangements for suspended deliveries; and the consequences if the contract is never resumed, damages, retention of what was supplied and the settlement of the final balance. A mechanism for recording the cause of suspension itself is prudent, in case the parties disagree that it has occurred.

Remedies two and three: enforce, or have it done at their cost

France remains a jurisdiction where performance itself can be compelled. After formal notice, the creditor may obtain a judicial order that the debtor perform in kind, generally under a daily penalty (astreinte), unless performance is impossible or there is a manifest disproportion between its cost to a good-faith debtor and its interest for the creditor, and provided the obligation enforced is actually in the contract (C. civ. Art. 1221; Cass. 1e civ., 18 déc. 2024, n° 24-14.750). The case law has compelled suppliers to deliver, landlords to hand over premises and restore power, builders to deliver apartments, an airline to fly the service it promised, a company to transfer the shares it had sold, no material, legal or moral impossibility standing in the way (CA Paris, 21 déc. 2001), and, in interim proceedings, a party to resume broken-off commercial relations where the damage from the rupture was imminent and grave (Cass. com., 21 mars 1984, n° 82-12.347). Obligations not to do are enforced the same way: the courts have prohibited, under a daily penalty, the exercise of an activity contrary to a non-compete undertaking (Cass. soc., 16 avr. 1975, n° 74-40.081) and the marketing of a work in breach of contract (Cass. 1e civ., 16 janv. 2007). And the seriousness of the breach is irrelevant here: enforced performance cannot be refused on the ground that the failure is not serious enough, a threshold that conditions termination, not performance. A creditor owed money may always prefer payment to damages or termination (Cass. 1e civ., 9 juill. 2003).

The self-help variant is replacement: after formal notice, the creditor may, within a reasonable time and at a reasonable cost, have the obligation performed by itself or a third party without judicial authorisation, court permission being needed only to destroy what was done in violation of the obligation (C. civ. Art. 1222), a route the courts have used to order a landlord to demolish fittings that disturbed the tenant's peaceful enjoyment (Cass. civ., 14 oct. 1964). The creditor may claim reimbursement of the sums spent, or ask the court to order the debtor to advance the sums needed, an advance the Cour de cassation distinguishes from an indemnity for the cost of the works (Cass. 3e civ., 6 avr. 2023, n° 19-14.118). Replacement cumulates with damages for any residual loss, but not with termination, the demand for performance being incompatible with the sanction that abolishes the contract (C. civ. Art. 1217).

Reducing the price for imperfect performance

Where performance is imperfect rather than absent, Article 1223 lets the creditor keep the contract and pay less. The regime is subsidiary: it yields to the special price-reduction provisions, such as hidden-defects and consumer-conformity rules, and it can be excluded by the parties, a sale by sample having been read as excluding any defect, however small (Cass. req., 15 mai 1877). The courts have applied reduction where the non-conformity left the performance fit for its purpose: furniture made in a different fir than stipulated without altering its essential qualities, wheat at the limit of acceptable quality but still fit for milling, services of manifest mediocrity and insufficiency (CA Paris, 17 mars 1987). After formal notice, a creditor who has not yet paid notifies the debtor of its decision to reduce the price as promptly as possible, a diligence the courts enforce: without the notification the reduction cannot be invoked (CA Versailles, 13 juin 2023, n° 22/01013), though a demand made at the hearing has been accepted as notification (CA Amiens, 6 juin 2023, n° 22/00381). A creditor who has already paid must, failing agreement, ask the judge. The reduction must be proportionate to the value of the imperfection, the judge appraising it freely, guided where they exist by trade usages, and it operates whether or not the price has been paid (Cass. 1e civ., 18 déc. 2024, n° 24-14.750); reductions of fifty per cent for goods two-thirds non-conforming but largely resold (Cass. com., 23 mars 1971, n° 69-12.029) and of ten per cent for a depreciating mixture of qualities illustrate the range. A reduction notified by the creditor may be accepted by the debtor, but only in writing (C. civ. Art. 1223). It cumulates with damages for the consequential loss the imperfection caused (Cass. com., 22 janv. 2008, n° 07-11.375), and it yields to the special regimes, hidden defects and consumer conformity among them, that carry their own price-reduction rules.

Which remedies are open on your facts?

Remedies four and five: termination and damages, and the rules that bar remedies

The fourth remedy ends the contract: résolution (termination for breach), by termination clause, by unilateral notification at the creditor's risk, or by the court, each with its own conditions and each examined in detail in our article on terminating French contracts. The fifth is compensation: damages for the loss the breach caused, which may accompany every other remedy (C. civ. Art. 1217) and are the subject of their own rules on recoverable loss, foreseeability and contractual caps. Two prescriptions frame the whole: the action for performance is distinct from the action in damages, each running its own five-year course (CA Paris, 17 mai 2023, n° 20/17817). And one boundary rule governs every damages claim between contracting parties: where the damage consists in the breach of a contractual obligation, only the contractual liability rules apply, with no option for the victim to prefer the rules of tort.

Three rules bar remedies. Election: incompatible remedies cannot be combined, so the party that has the obligation performed by a third party cannot also terminate. Reciprocal breach: a party that has not respected its own obligations cannot demand strict performance from the other, both claims failing together (CA Paris, 30 août 2019, n° 17/19477). And renunciation: a party may waive its right to invoke the breach, a unilateral act requiring no reciprocal concession (Cass. 2e civ., 2 févr. 2017, n° 16-13.521), but the waiver is never presumed: it must result from acts showing an unequivocal intention to renounce (Cass. ch. mixte, 26 avr. 1974), it is not deduced from inaction or silence alone (Cass. 2e civ., 10 mars 2005), and where the contract fixes a formalism for waiver, only that formalism counts (Cass. 3e civ., 9 sept. 2021, n° 20-14.189). It is also construed restrictively: a clause providing termination for two specified failures does not exclude termination founded on a different one (Cass. 3e civ., 10 déc. 2014, n° 13-27.332). Positive acts can waive, as with the supplier who offered to indemnify a late delivery and thereby renounced its no-liability clause (Cass. com., 19 févr. 2008, n° 07-10.943), and so can prolonged, unambiguous conduct, as with the seller who let seventeen years pass without pursuing the unpaid balance (Cass. com., 4 mars 2014, n° 13-11.736). Between those two extremes, the victim should react with measure: neither a precipitate rupture of the contract nor an open-ended tolerance of the breach serves its position.

Frequently Asked Questions

This article is for general information only and reflects French law as published at the date shown above. It does not constitute legal advice. Always seek qualified advice before acting.