Suspending Performance Under French Law: The Exception d'Inexécution

Suspending performance under French law: the exception d'inexécution

The exception d'inexécution (exception of non-performance) is the most immediate remedy French law gives the victim of a breach: in a contract with reciprocal obligations, the party that has not yet performed may withhold its own performance where the other side has not performed, or has refused to perform, its obligation, provided that inexecution is sufficiently serious (C. civ. Art. 1219). No judge authorises it, no formal notice precedes it, and since the 2016 reform it can even be exercised before any breach has occurred, where it is manifest that the counterparty will not perform at the due date (C. civ. Art. 1220).

Its power is also its danger: the party that suspends judges its own case, at its own risk, and a court asked to review the suspension years later will verify every condition against the file as it stood on the day of the decision. This article sets out the conditions the courts actually verify, what is not required, the anticipatory version and its notification requirement, the judicial and contractual suspensions that sit beside the exception, the special discipline of payment disputes, the limits of the remedy, and the mistakes that turn a legitimate suspension into a breach.

Can you stop performing while the other side is in breach?

What the exception d'inexécution is, and which contracts allow it

Article 1219 codified, under its traditional name, a rule the courts had applied for close to a century: in a synallagmatic contract (a contract with reciprocal obligations), the party that has not yet performed its obligation may abstain from doing so where its co-contractor has not performed, or has refused to perform, its own (Cass. req., 17 mai 1938; Cass. com., 15 janv. 1973), on condition of proving that inexecution (Cass. 1e civ., 18 déc. 1990, n° 89-14.975; Cass. 3e civ., 6 mars 2025, n° 22-16.539).

The mechanism rests on the interdependence of the obligations in a synallagmatic contract: each party's performance is the cause of the other's, so that neither can claim what it is owed while refusing what it owes. The reciprocity requirement fixes the field of the defence. It can be opposed only to a party that owes a counterpart under a contract, not to obligations of statutory origin, and not by a third party to the contract (CA Bordeaux, 17 févr. 2025, n° 23/00434). It must attack the very obligation claimed to be unperformed: a tenant may refuse rent to a landlord that has not delivered the premises, and the defence extends to the reciprocal, interdependent restitution obligations that follow the resolution or nullity of a synallagmatic contract (Cass. civ., 17 déc. 1928), and to distinct contracts on condition that they are themselves interdependent. Where no obligation remains to be performed, there is nothing to suspend and the exception is unavailable. The defence is robust against drafting: a clause declaring a service provider's mission indivisible, and the client bound for the whole, cannot exclude the exception invoked by a client who establishes the breach (CA Paris, 26 sept. 2017, n° 17/00415), which suggests that the mechanism is at least a matter of internal public policy.

The practical applications map onto every synallagmatic relationship. The tenant withholds rent against the landlord who has not delivered the premises or has deprived it of their enjoyment. The buyer withholds the price against the seller who does not deliver. The distributor bound by an exclusive-supply obligation sees that exclusivity suspended where the supplier's own supply obligation is suspended (Cass. com., 15 janv. 1973). The client withholds payment of invoices against the provider whose services are defective, provided it justifies the failures invoice by invoice. The exception even survives the contract in one respect: it applies to the reciprocal restitution obligations that arise when a synallagmatic contract is annulled or resolved, each party being entitled to withhold its restitution until the other restores what it received. In each configuration the mechanism serves the same function: it guarantees the reciprocity of the exchange, by ensuring that neither party can demand the other's performance while withholding its own.

The conditions of a valid suspension: what the courts verify

The party invoking the exception must satisfy conditions the courts police case by case:

• A sufficiently serious breach by the other side (C. civ. Art. 1219), which the judges appraise sovereignly (Cass. com., 27 oct. 1981, n° 80-11.083; Cass. 3e civ., 11 janv. 2006, n° 04-30.240): partial failures, minor delays and defaults whose reality was still being litigated have been held insufficient, while failures striking the very purpose of the contract, such as non-delivery, deprivation of enjoyment or persistent defective performance, have qualified (Cass. com., 15 oct. 1996).
• A prejudice suffered from the failure denounced (Cass. com., 25 mai 2022, n° 20-18.666, ordering the buyer who suffered none to pay the price), although the suspending party need not assert a monetary claim born of that failure (Cass. com., 20 nov. 2024, n° 23-19.552).
• Clean hands: the party suspending must not itself be the origin of the default it imputes to its co-contractor, no one being allowed to rely on its own fault.
• Proportionality: the obligation withheld must be of an importance comparable to the one unperformed (Cass. com., 1 juill. 1980).
• Precision: a party disputing the performance of services covered by several invoices must justify, invoice by invoice, the failures it alleges (CA Versailles, 4 nov. 2021, n° 20/04676).

The burden of proof accompanies the initiative: non-performance is a fact, provable by any means, and it is the party that suspends who must establish the breach it denounces if the suspension is challenged.

These conditions are also sufficient. The courts have expressly refused to add others: no prior mise en demeure is needed (Cass. com., 26 mai 1981, n° 79-15.606; Cass. 3e civ., 18 sept. 2025, n° 23-24.005); a clause providing for automatic termination of the contract for breach is no obstacle; the counterparty cannot defeat the exception by invoking a breach of the duty to advise owed to it (Cass. com., 14 févr. 2018, n° 16-25.100); and the party that validly raised the exception may seek resolution of the contract even after insolvency proceedings have been opened against its co-contractor. Nor do late-payment penalty clauses exclude the defence: stipulating one sanction does not renounce the others (Cass. 3e civ., 14 févr. 2019, n° 17-31.665).

Suspending before the breach: the anticipatory exception of Article 1220

The 2016 reform added a preventive version of the defence. A party may suspend the performance of its obligation as soon as it is manifest that its co-contractor will not perform at the due date, and that the consequences of that non-performance are sufficiently serious for it, on condition that the suspension is notified as soon as possible (C. civ. Art. 1220).

Each element of the text carries weight. The future non-performance must be manifest, not merely feared: financial difficulties, rumours or a deteriorating relationship do not by themselves establish it, and the assessment is made at the moment of the suspension, on the information then available. The consequences must be sufficiently serious for the suspending party specifically. And the notification is a condition, not a courtesy: a party that suspends silently loses the benefit of the text. In practice the notification letter should identify the obligation at risk, the facts making the future default manifest, and the obligations suspended in response, so that the file demonstrates each statutory element if the suspension is later challenged.

Beyond the exception: judicial and contractual suspension of the contract

The exception of non-performance is one instrument among several that stop a contract's effects for a time, and the neighbouring mechanisms deserve a place in the same analysis.

Judicial suspension

Suspension is the momentary arrest of the contract's effects by reason of a determined event, and it can be judicial or contractual. The courts admit the suspension of the contract in case of force majeure creating a temporary impossibility of performance (C. civ. Art. 1218): states of war, requisitions, temporary regulations, storms and riots have all supported it. Suspension can also operate outside force majeure: the judges may validate a suspension decided by one party where the circumstances justify it, notably where continued performance had become gravely and immediately damaging for that party (Cass. com., 1 déc. 1998). The effects are uniform: the suspension paralyses the contract's effects for as long as the event lasts, and when it ceases the contract resumes exactly as it stood. Its duration is not extended, and neither party may impose new conditions on the other, such as advance payment, as the price of resumption. Where the delay caused by the impediment justifies it, resolution of the contract can be sought instead.

Contractual suspension clauses

In practice, suspension is most often organised by the parties themselves, who fix its causes and its effects. A complete suspension clause settles four groups of questions:

• Which obligations are suspended. The clause states whether all obligations are suspended or only some, listed exhaustively; obligations of confidentiality and of non-competition should be expressly maintained, since their interruption could compromise the contract's very purpose.
• Substitution. The clause takes a position on whether the party deprived of the agreed performance may, during the suspension, obtain it from a third party as a temporary replacement, or whether that recourse is excluded.
• Resumption. The clause fixes an outside time limit for resumption, to avoid an indefinite suspension, the manner of recording that the cause of suspension has disappeared, and any catch-up arrangements, such as the acceleration of suspended deliveries within a determined period.
• Failure to resume. The clause decides the consequences of the contract's definitive extinction if performance never resumes: whether damages are due, whether each party keeps what it received in performance, and how the final balance is settled.

A mechanism for recording the cause of suspension itself is prudent, in case the parties disagree that it has occurred: the party that suspends on a cause the other disputes is back in the position of the exception of non-performance, judging its own case at its own risk.

Would your suspension hold in court?

The limits of the exception: suspension is not termination

The freedom the exception gives is bounded on every side, and the boundaries are where suspending parties lose their cases. The remedy is strictly provisional, and the following limits define it:

• Suspension, nothing more. Even a well-founded exception does not authorise the party invoking it to break off the contract: a party that treats its own suspension as a termination commits a breach in its turn (Cass. com., 1 déc. 1992). Termination follows its own routes, by clause, notification or the court.
• Resumption is mandatory. The suspending party must resume performance as soon as its co-contractor has performed, or has indemnified the damage caused by the breach (CA Paris, 21 mars 1979), unless it validly renounced any recourse (CA Rennes, 16 nov. 2004). The exception is pressure, not punishment: once its cause disappears, so does the suspension.
• The limitation period keeps running. A party that suspends and waits must watch the prescription of its own claim: it risks being sued in performance at a time when the counterclaim it intends to raise has become time-barred. Suspension is not a substitute for asserting the claim.
• Insolvency does not close the route. The party that validly raised the exception may seek resolution of the contract even after insolvency proceedings have been opened against its co-contractor, and a creditor whose claim appears founded in principle can seek judicial authorisation for protective measures over the debtor's assets while the dispute matures: a provisional mortgage over buildings, a judicial pledge of the business, or a protective attachment of movables, with a provisional payment available in interim proceedings where the claim is not seriously disputable.

The comparison with neighbouring mechanisms sharpens the analysis. Unlike termination, the exception preserves the contract: the obligations survive, ready to resume. Unlike force majeure suspension, it responds to a breach, not to an impossibility, and requires no external event: the counterparty could perform, and simply has not. And unlike the judicial suspension of the contract, it is decided by the party alone, without any court order, subject to the judge's later review of every condition if the counterparty challenges it. That review is the counterweight of the remedy's freedom: the exception is exercised in a moment, and justified, if need be, over years of litigation.

The exception in payment disputes: withholding the price the right way

Most suspensions in business practice concern money: a client stops paying because the services are defective, a buyer holds the price because the goods do not conform. The rules above then take a concrete shape. The withholding must correspond to the failure, which means matching the sums withheld to the obligations unperformed and justifying, invoice by invoice, the defects alleged (CA Versailles, 4 nov. 2021, n° 20/04676). The presence of a late-payment penalty clause changes nothing: the exception may still be invoked for payment delays, since stipulating one sanction does not renounce the others (Cass. 3e civ., 14 févr. 2019, n° 17-31.665).

The exception should also be distinguished from the price reduction of Article 1223. The exception suspends payment provisionally, until the counterparty performs or indemnifies; the reduction settles the price definitively, in proportion to the imperfection of the performance, after a formal notice and a prompt notification. A party that intends to keep the goods or services in their imperfect state, and to pay a definitively lower price for them, is exercising the price reduction of Article 1223 and must follow its procedure of notice and prompt notification; a party that demands correct performance and withholds payment until it obtains that performance is exercising the exception of non-performance. Confusing the two exposes the payer to a claim for the full price, with default interest from the formal notice.

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.