What Is a Mise en Demeure, and Why French Remedies Start With It

What is a mise en demeure, and why French remedies start with it

The mise en demeure (formal notice to perform) is the act by which a creditor formally demands that its debtor perform an obligation, usually within a stated period. Foreign businesses tend to treat it as a courtesy letter that precedes the real dispute. Under French law it is much more than that: the contract may require it, statute requires it in many situations, and the courts have made it a general precondition of invoking a breach at all. A creditor who claims damages, charges default interest or terminates a contract without having served the notice, in a case where it was required, loses on that ground alone, whatever the merits of the underlying complaint.

This article explains when the notice is required and when the law dispenses with it, when the obligation it demands is actually due, the forms the notice can validly take, what it should contain, who must prove what once it is served, and its exact legal effects: establishing the breach, starting default interest, shifting the risk of the thing to the debtor, and framing the force majeure defence.

Do you need to send a mise en demeure before acting?

When the mise en demeure is required: contract, statute and general rule

Non-performance of a contract is a fact, provable by any means, but the mise en demeure is the privileged way of proving it, and the law imposes it in many situations. Three sources make it necessary:

• The contract. The notice is always required where the contract provides for it (Cass. civ., 20 juin 1978), and in the conditions the contract fixes: a party who terminated before the stipulated notice period had run bore the consequences of that termination (CA Paris, 16 déc. 1987). The clause must be clear, however: a quota clause in a distribution agreement was not read as a formal-notice requirement (Cass. com., 22 mars 1977, n° 75-14.793).
• Statute. Numerous legal provisions require a formal notice before a particular remedy can be exercised, whatever the contract says.
• The general rule of the courts. Beyond contract and statute, the courts have made the notice a general precondition of denouncing non-performance.

The decisions on creditors who skipped the step show what is at stake, and how mechanically the sanction falls:

• a seller who had not put the buyer of a vehicle on formal notice to pay the balance could not keep the instalments received as damages, the court noting that it had not even pursued termination of the sale (Cass. civ., 21 oct. 1980);
• a creditor entitled to demonstrations promised by its debtor could not reproach the debtor's inaction without having demanded performance, even though its own cooperation was needed to benefit from the services (Cass. com., 28 mai 1996);
• a lessor of an industrial vehicle could not unilaterally terminate the lease for an unpaid invoice without a prior notice threatening termination (CA Pau, 13 juin 2023, n° 22/00409).

The lesson for creditors is uniform: before any remedy is exercised, the file should contain a notice that identifies the obligation, demands performance and has expired without effect.

Only a due obligation can be the subject of a notice: when obligations arise

A mise en demeure presupposes an obligation that has fallen due. French case law fixes the starting points. The contract enters into force on the day of its conclusion, and the agreed obligations arise, unless otherwise agreed, on the day the contract is concluded, not on the day set for their performance (Cass. 1e civ., 11 déc. 1985, n° 84-15.716); where signatures are given on different dates, the relevant day is that of the last signature (CA Paris, 25 avr. 1974). The parties may agree a different date, including an earlier one: the retroactivity of a contract is an ordinary use of contractual freedom, within the limits of fraud on third parties and public-policy regimes (Cass. 3e civ., 3 nov. 2011, n° 10-20.936). The notice, and the default interest and risk transfer it produces, can therefore only attach from the moment the obligation demanded was exigible; a demand for performance not yet due is not a mise en demeure but an invitation.

When no mise en demeure is needed: the six dispensations

The rules developed by the courts before the 2016 reform remain valid, no new provision having displaced them. The notice is dispensed with where:

• the contract excluded it, and the exclusion may be implicit (Cass. 3e civ., 22 avr. 1975, n° 73-14.055; Cass. com., 28 nov. 1978, n° 77-11.698; Cass. 3e civ., 9 juin 1999, n° 97-20.977); it may even result from a clause of another contract between the same parties providing for termination of any contract between them without formal notice (Cass. com., 10 févr. 2015, n° 13-25.783);
• performance was impossible on the day the debtor would have been put on notice (Cass. com., 18 oct. 2023, n° 20-21.579), or had become impossible, as where a fixed-term contract had already expired when proceedings were issued without a prior notice (Cass. com., 17 févr. 2009, n° 08-13.896);
• the debtor let the agreed performance deadlines pass, the courts applying penalty clauses and awarding damages without requiring a notice in that case (Cass. com., 2 avr. 1974, n° 72-14.525);
• the breach is established and has caused loss to the party claiming compensatory damages (Cass. ch. mixte, 6 juill. 2007, n° 06-13.823; Cass. com., 22 févr. 1994), or the debtor itself declared to the creditor that it refused to perform (Cass. 3e civ., 3 avr. 1973, n° 72-10.247);
• urgency excluded it, the transport of perishable goods being the textbook situation (CA Paris, 14 mai 1970);
• on the facts, it would have been pointless (Cass. com., 17 janv. 2024, n° 22-20.785; Cass. 3e civ., 25 janv. 2024, n° 22-16.583).

Two situations do not dispense with the notice, contrary to what creditors often assume: the presence of a penalty clause in the contract does not, in principle, excuse the sending of a formal notice (CA Versailles, 20 oct. 1982), and neither does the adhesion character of the contract (Cass. com., 22 mars 1977, n° 75-14.793). A creditor in doubt should serve the notice: it costs a registered letter and preserves every remedy.

Form and content of a valid mise en demeure

The parties are free to shape the mechanism in the contract. They may provide that the debtor is put on notice by the mere fact that the obligation falls due (C. civ. Art. 1344), which removes the need for any letter at all: the arrival of the due date then produces, by itself, all the effects of the formal notice. They may, conversely, stipulate a form, and that form must then be followed: where the parties provided for a notice by extrajudicial act, only a bailiff, now the commissaire de justice (judicial officer), can serve it (Cass. civ., 27 nov. 1990).

Where the contract stipulates no particular form, the mise en demeure may result from a sommation (bailiff's formal demand) or from any equivalent act from which a sufficient demand for performance appears (C. civ. Art. 1344). The courts have upheld:

• a registered letter with acknowledgment of receipt (lettre recommandée avec accusé de réception) (Cass. com., 17 déc. 1996, n° 94-20.568);
• an email whose terms amounted to a sufficient demand (CA Paris, 20 janv. 2004);
• a summons in proceedings for termination for defective works (Cass. 1e civ., 23 mai 2000, n° 97-22.547) or for non-payment of the price (Cass. com., 28 févr. 1972, n° 70-13.850), including a summons served through the oblique action against the debtor's own debtor (Cass. civ., 9 déc. 1970);
• a valid demand for payment (commandement de payer).

Where several joint parties appear in the contract, even at the same address, a separate notice should be sent to each of them (Cass. 2e civ., 26 mars 2015, n° 14-13.327). And precision on the amount is not a trap for the creditor: a notice demanding more than what is actually owed remains valid to the extent of what is really due (Cass. 1e civ., 9 mars 1970, n° 68-12.778; Cass. 3e civ., 6 mai 1998, n° 96-14.339).

Proving the breach behind the notice: obligations of means and obligations of result

The mise en demeure denounces a non-performance, and who must prove what depends on the nature of the obligation. Non-performance is a fact, provable by any means; the notice is its privileged instrument of proof. The decisive classification is the court-made distinction between the obligation de moyens (obligation of means, a duty of diligence) and the obligation de résultat (obligation of result, a promise of a determined outcome), which the Civil Code neither codifies nor prohibits. It concerns only obligations to perform a task: the obligation to deliver, and the obligation not to do something, are measured by their result alone.

Where the debtor is pursued for a total absence of performance, it is for the debtor to prove that it performed (C. civ. Art. 1353), whatever the type of obligation; where the obligation is one of result, the failure is established by the mere fact that the promised result is absent. For defective performance the burden divides:

• Obligation of means: the debtor answers for a defective performance only if it is due to its fault, which the creditor claiming compensation must prove (Cass. com., 19 oct. 1982, n° 81-10.220); any fault suffices, even a slight one (Cass. 1e civ., 7 févr. 1979, n° 77-13.735).
• Obligation of result: the debtor answers on the mere finding that the promised result is not achieved, presumptions of fault and of causation resting on it; it escapes liability only by proving force majeure (C. civ. Art. 1231-1), and its diligence is irrelevant. Causation can be deduced from the very absence of the result, though not where the damage arises long after the debtor's intervention (Cass. 1e civ., 19 juill. 1988, n° 87-10.072).
• Intermediate situations: for certain reinforced obligations of means, notably the custody of a thing by depositaries, hirers of movables and borrowers, the debtor is released only by proving its own absence of fault; and an obligation of result can coexist with a duty of cooperation on the creditor, whose breach leads to a sharing of liability.

The classification follows the promise the parties actually made, and the drafting of the obligation therefore decides the litigation years later. An obligation is one of result wherever the debtor promised a determined effect (Cass. 3e civ., 24 juin 1987, n° 86-11.920) or the promised services carry no uncertainty (Cass. com., 16 mars 1999): guaranteed performance of an installation, the reliability of supplied personnel, the comfort promised to first-class passengers, a maintained volume of business. It is one of means where the debtor promised only its diligence or took no precise engagement: research work, capital placements without guaranteed returns, promises to "endeavour" (Cass. com., 13 sept. 2011, n° 10-15.732) or to "see to it" that a result is obtained (CA Paris, 14 juin 2017, n° 15/00827). The creditor's own conduct can also change the classification: an alarm installer whose client refused the device proposed as necessary was not bound to a result (Cass. com., 11 juin 1985).

One consequence matters directly for the notice. A debtor who subscribed an obligation not to do something is not liable as of right when it acts in breach: the creditor must serve a mise en demeure ordering the cessation of the offending conduct, and prove the prejudice the contravention causes it.

Is your mise en demeure valid and effective?

The effects of the mise en demeure: breach established, interest running, risk shifted

Once the notice has been served, the non-performance is established against the debtor if the failure it denounces persists at the expiry of the period the notice allowed for performance (Cass. 1e civ., 13 mars 2024, n° 22-24.170), and the creditor may from then on invoke the breach for every purpose the law attaches to it. Until that inefficacy of the notice is recorded, the creditor can do very little: it cannot claim damages (Cass. civ., 13 avr. 1923), cannot demand payment of the sums due (Cass. soc., 17 déc. 1943), cannot charge default interest (Cass. com., 20 juin 1972, n° 70-11.918), and cannot terminate the contract (Cass. civ., 21 oct. 1980). The notice is, in that sense, the key that turns every other remedy on.

Two automatic effects then attach by statute:

• Default interest. A notice to pay a sum of money starts interest running at the legal rate, without the creditor having to prove any loss (C. civ. Art. 1344-1).
• Risk of the thing. A notice to deliver a thing places the risks of the thing on the debtor, if they were not already there (C. civ. Art. 1344-2).

The notice also frames the force majeure defence. A debtor bound to deliver a thing is released, to the extent of the impossibility, where a definitive force majeure event prevents performance, unless it had agreed to bear that risk or had previously been put on formal notice (C. civ. Art. 1351). Even a debtor on notice is released, however, where the thing was lost and it proves that the loss would equally have occurred if the obligation had been performed (C. civ. Art. 1351-1); the debtor must then assign to the creditor the rights and actions attached to the thing. Loss, in this sense, covers the situations where the specific thing owed perishes, is put out of commerce, or is lost in such a way that its existence is entirely unknown.

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.