Oxford University Comparative Law Forum

ISSN 1743-8713

Last updated: 18/05/16

Valid HTML 4.0!

Oxford University Comparative Law Forum

Performance of Another's Obligation: French and English Law Contrasted.

by Simon Whittaker*

(2000) Oxford U Comparative L Forum 7 at ouclf.iuscomp.org | How to cite this article

Table of content


The "performance" of obligations by persons other than those who bear them, far from being exceptional, is an everyday occurrence under both the French and English systems of law. It is the purpose of this paper to explain how this is the case in particular in relation to contractual (and private law1) obligations and to explain how this relates to more general issues of performance (whether voluntary or enforced), damages (notably, the rules clustered around the notion of mitigation) and restitutionary recovery. As my title indicates (and, indeed, as the structure of the French law requires), I shall discuss the performance of obligations in general and not merely those to pay money. The juxtaposition of two provisions of the French Civil Code forms the starting point of my discussion: the first, article 1236, is the obvious one, as it deals with the situations in which the law permits the performance of another's obligation by a third party; the second, article 1144, is less obvious, as it provides for judicial authorisation of a creditor of a contractual obligation to have the debtor's obligation performed at the debtor's expense.

I. A note on terminology

In the following discussion, it seems to me helpful to set out the French terminology and explain its usefulness for analysis of our two situations. Here, we need to distinguish carefully between obligation, prestation and paiement. In French discussions, the term obligation itself may bear two significances; it may describe the totality of the relationship between the two parties, the duty-bearer (known as débiteur , whether or not the obligation concerns a sum of money) and the right-holder (known as créancier, equally generally).However, obligation may also bear the significance which is most common to the English word obligation, i.e. to describe the duty itself, la dette, the correlative of which is the creditor's personal right, the droit de créance. French law takes analysis of obligation a stage further and asks what is the subject matter of this duty and answers that it is the prestation, the "thing to be done" (or "thing not to be done") with which the obligation is concerned.2 So, for example, in a building contract, for the builder it is the work, for the employer the paying of the price. Thus, the well-known French classification of obligations into those to do, not to do and to transfer property (de faire, de ne pas faire and de donner 3) is a classification according to the nature of the prestation.4

French lawyers use paiement to describe what a common lawyer would see as payment of another's debt, but the term is potentially misleading. First, paiement is not restricted to the ordinary French (and English) meaning of the payment of a money sum: paiement may relate to obligations to do or not to do more generally. Beyond this, there are two ways in which it is used. 5 In the ordinary situation of paiement by the debtor of an obligation, paiement refers both to performance and its resulting discharge of the debtor: as Malaurie and Aynès put it, " paiement is the extinction of the obligation by its performance."6 However, while paiement usually entails the discharge of the debtor, as we shall see, it does not always do so.7 Recognising this qualification, many jurists follow Aubry and Rau in defining paiement as " the accomplishment of the prestation which forms the subject matter of the obligation."8

This definition of paiement is very helpful, as it emphasises that when we talk of performance of another's obligation we are not talking about performance in a full sense at all; for, in my view, in a full sense only a debtor can perform an obligation as only he bears the duty. What another person may do is the "accomplishment" of the very thing which is the subject matter of the debtor's obligation; it is then for the law to decide whether this is to be treated in law (either for some or for all purposes) as equivalent to performance by the debtor. In both English and French law, a typical situation where the law does indeed assimilate the accomplishment of the prestation by a third party to performance by the debtor is where the third party is the debtor's agent, for both systems recognise the idea of representation of one person by another; but a legal system may treat other third party paiements as performance of the debtor's obligation (as French law indeed does).9

It is also this idea that paiement in the context of non-debtor "performance" consists of no more than the actual accomplishment of the subject matter of the debtor's obligation which leads me to juxtapose article 1136 with article 1144, as the latter provides a legal mechanism by which a creditor may himself or through a third party have the subject matter of the debtor's obligation achieved. In this context, however, French discussions acknowledge this idea by use of the expression exécution en nature to describe both the obvious case of performance of an obligation by a debtor after order by a court and also creditor or third party performance after authorisation by a court.

II. "Parties au paiement:" article 1236 C. civ.

1. The texts

Article 1236 of the Civil Code describes the general rules as to paiement by a third party:

An obligation may be discharged by any person who has an interest in doing so, such as a joint debtor or a surety.

The obligation can even be discharged by a third party who has no interest in doing so, provided that the third party acts in the name of and in order to discharge the debtor or provided that, if he acts in his own name, he is not subrogated to the rights of the creditor.10

Article 1237 then qualifies this:11

An obligation to do cannot be discharged by a third party contrary to the wishes of the creditor, where the latter has an interest in it being performed by the debtor himself.12

This framework of rules is clearly derived from the Roman position, via Pothier.13 The position in the modern French law is somewhat more complex than these provisions suggest, particularly as regards the relationship between paiement by a third party and restitutionary recovery.14 In all, three questions are addressed: who may perform an obligation? what is the effect of performance on the original obligation? what recourse by the third party is recognised?

2. Who may perform?

In principle any person may perform another person's obligation: as it is often put, "in principle the personality of the solvens is a matter of indifference."15 The third party need not for this purpose even purport to act in the name of the debtor in offering the prestation, as long as he offers the creditor exactly the subject matter of the debtor's obligation. While in French law, a typical context for third party performance of an obligation is the case where the debtor asks a third party to perform the prestation for him, there is no need for the third party to have the debtor's consent or authority to act in this way (though the issue of consent does affect the possible recourse which a third party may have against the debtor).16

However, as we have seen, this general principle is qualified by article 1237 of the Code, which disallows third party performance where the creditor has an interest in performance by the debtor himself. In general, the issue of a creditor's interest is a matter for the juges du fond and they have interpreted the matter generously from the point of view of the creditor.17 The creditor's "interest" for this purpose is typically found in the fact that the creditor in entering the contract with the debtor relies on the latter's skill or other personal characteristics, of which he should not be deprived by third party intervention. However, it may be found in other elements, so that, for example, where a person sells property in return for an annual payment (rente viagère), the seller (creditor) may have a legitimate interest in refusing payment of the rente by a third party even if the buyer (debtor) is insolvent, as non-payment of the rente would otherwise entitle him to terminate the contract and recover his property.18 Also on this basis, the courts have allowed a landlord of a farm to refuse to accept the payment of rent by the father of the tenant farmer where both the tenant and his father's attitude suggested that the father did not treat his previous assignment of the farm as final: the landlord was justified in fearing that the father's payments could later be used as evidence in support of his "abusive allegations."19 Related to this is the position taken by French courts as regards the parties' exclusion of third party performance: while the Civil Code does not require that the third party acts with the consent of the debtor, French courts accept that if both the debtor and creditor agree (whether in advance or subsequently) that only the debtor should perform, then this agreement will be given effect, subject to its being 'legitimate.'20 On the other hand, the creditor may not oppose performance by a third party simply on the basis that is useless or even dangerous to the debtor. 21

We can see, then, that this law is expressed in terms of what a third party may do, whether a creditor may refuse third party performance if the due paiement is tendered. But what does this mean in practice? Modern French law possesses no notion of mora creditoris to categorise the situation where the creditor wrongly refuses due performance.22 Instead, where the prestation consists of the supply of money or property, French law possesses a procedure by which tender of what is due may be formally offered to the creditor and then "consigned" to the relevant approved depositary.23 If the creditor does not then accept the formal tender, after the appropriate procedures and a decision of the court, the debtor is discharged by operation of law.24 This procedure applies as much to third party paiement as to paiement by the debtor.25 Moreover, more generally, it would seem that tender of a conforming prestation by a third party would prevent any attempt to enforce performance against the debtor.26

3. The "liberating effect" of performance and recourse by the third party

Article 1236 sets out the "liberating effect" of third party performance, an issue which in French law is intimately related to the question of recourse by the third party. In the following discussion it should be recalled that there is no general requirement that any of the paiements in question be effected with the debtor's consent: instead, the primary distinction is between performance by a third party with or without an interest in doing so.

(a) performance by interested third parties

Where the third party whose performance is accepted by the creditor has an interest in so acting, then the debtor is discharged vis-à-vis the creditor, but not vis-à-vis the third party, who is subrogated by operation of law into the legal position of the creditor.27 French law therefore uses the idea of relative discharge to reconcile the third party's intention to discharge the debtor, the creditor's satisfaction and the technique of subrogation. Article 1236 gives two examples of such an interest: where the third party is jointly obligated with the debtor and where he is the debtor's surety (caution). As to the latter, it is to be noted that a surety who performs the obligation for the debtor (typically, but not exclusively by paying a sum of money), may recover from and is subrogated to the creditor's rights against the debtor whether or not the surety entered the contract of suretyship at the request of the principal debtor.28 However, the form of article 1236 makes clear that a third party may have an interest in performing another's obligation, even where not himself a joint debtor or surety. A common example of this in French practice is the situation where A buys from B property which is subject to a mortgage or lien owed by B to C: here, A has an interest in paying the debt owed by B to C so as to avoid the threat of dispossession by C.29

The technique of subrogation has both advantages and disadvantages from the point of view of the third party.30 The main advantage is that he may take advantage of any security which the creditor enjoyed in relation to performance of the obligation; but the disadvantages include the possibility of being met with a defence or right of set-off which the debtor enjoyed against the creditor and the possibility of the right expiring according to the prescription period applicable to the creditor's claim.31 This being the case, it is interesting that French law at times allows a third party who possesses a subrogated claim also to have recourse against the debtor on the basis of his own independent right. This is the case with sureties, whose claims arise simply on payment and without any need to satisfy the conditions of gestion d'affaires or enrichissement sans cause.32

(b) performance by non-interested third parties.

As regards performance by non-interested third parties, the position has proved more controversial and remains more complex. Article 1236 itself distinguishes here between those third parties who perform "in the name of and to discharge the debtor"("au nom et en l'acquit du débiteur") and those who perform to discharge the debtor but in their own name:33 the former are to benefit from subrogation to the creditor's rights against the debtor by operation of law and so their performance in general discharges the debtor vis-à-vis the creditor, but not vis-à-vis the third party. Article 1236 also provides that performance by a third party to discharge the debtor but in the third party's own name will discharge the debtor, but will not give rise to any subrogation to the creditor's rights: here, then, the original obligation is entirely extinguished. However, in order for even relative discharge to occur, the third party must perform out of his own resources ("de ses propres derniers"), a condition which arises in the context of payments in money. Thus, if a third party purports to pay a debtor's debt out of his own funds, but is found to have paid out of the creditor's funds, then the obligation is not discharged.34

However, the terms of article 1236 do not give a complete picture of the modern law.

First, French lawyers do not consider that article 1236 prevents the effectiveness of an express condition that on performance for the debtor a third party is to be subrogated to the creditors rights:35 such a subrogation conventionelle leads to the same position as does subrogation by operation of law, the debtor being discharged only vis-à-vis the creditor and remaining bound to the original obligation to the third party.

Secondly, quite apart from any subrogated rights, a third party in this situation may have an independent right of recourse against the debtor. In this respect, there has recently been a fluctuation in the attitude of the Cour de cassation. The traditional view was that third party performance could give rise to a right of recourse if an independent ground for such a right could be established on the facts, notably by way of mandat (if the performance was authorised by the debtor), gestion d'affaires or enrichissement sans cause (if the performance was not so authorised).36 However, in 1990 the Cour de cassation took a radical departure and declared that where a third party knowingly pays another's debt out of his own resources without being bound to do so, the sole fact of paiement gives rise to an independent right of recourse.37 This jurisprudence was the subject of much juristic criticism: quite apart from other considerations, the mere discharge of the debtor in these circumstances clearly cannot always allow the third party to recover, for the latter may have acted from a spirit of generosity to the debtor which should clearly rule it out.38 More importantly, the new approach allowed recovery in situations where the conditions of gestion d'affaires or enrichissement sans cause were not satisfied, but these conditions should be retained as they encapsulate a fair and proper balance of the interests of the parties in question and their avoidance sacrifices the interests of the debtor.39 Perhaps in response to these criticisms, only two years later, the Cour de cassation changed its mind and implicitly returned to the traditional position.40 In this case, the claimant had paid the "residence tax" of his handicapped step-daughter who lived with him over a period. After her death, he claimed to be reimbursed for these sums from her estate. The Cour de cassation declared that "it is for a person who has knowingly discharged another person's debt without being subrogated to the creditor's rights, to show that the cause from which this payment arises implies for the debtor an obligation to reimburse the payor in respect of sums paid." This being the case, the lower court was entitled to reject the claimant's claim on the ground that he had not established on what basis he had paid the tax. Subsequent decisions of the Cour de cassation have taken the same line.41

What then is the present position? Clearly, where a third party performs to discharge the debtor out of a spirit of generosity, then he cannot later change his mind and claim reimbursement from the debtor and the form of the 1992 judgment suggests that it will be for a third party to show that it was not done out of a sense of philanthropy to the debtor.42 This rule holds good whether or not the performance was effected in the third party's own name or the debtor's. It is also clear that this change in approach by the courts does not threaten the established independent claims of interested third party performers, such as the surety, for in such a case the relationship of suretyship itself constitutes the cause from which his performance arises, even if the suretyship was undertaken against the principal debtor's wishes.43

Beyond this, a distinction should be made on the basis of whether or not the third party's performance was authorised by the debtor.

If performance is rendered in the name of the debtor and with his authority, then a contract of mandat arises between them,44 with a resulting right of reimbursement in the third party as the debtor's mandatory.45 On the other hand, if the debtor did not give any authority for the third party to act in his name and perform his obligation or if the third party did not act in the debtor's name (even though he acted in order to discharge him), then the third party may be able to recover on the basis of gestion d'affaires or, if not, enrichissement sans cause.46

For a right of recourse to arise in the third party as the debtor's gérant d'affaires47 there are two conditions which are particularly significant in our context:48 first, gestion d'affaires arises only when the third party's performance is "useful"(utile) to the debtor, a condition which is placed in the "sovereign power of assessment" of the lower courts. Now, it may be thought that the performance of another's obligation is always "useful" to him, but it may not be, for by being liable to the third party directly and independently of the original obligation, the debtor may lose the benefit of any defences which he might have possessed against the original creditor: in such a circumstance it would not be useful for a third party to perform to the prejudice of the debtor.49 It is on this ground also that it is rare for gestion d'affaires to be successfully invoked by a bank who pays a debt of a third party for which he no longer had a mandate, since intervention by a bank in such a situation contradicts the principle against conducting a client's affairs without authority.50 Secondly, while gestion d'affaires does not rest on any authority in the debtor, in French law it will not arise if the debtor has made clear his lack of consent51 as long as this is deemed to be legitimate.52

Recovery by the third party on the basis of enrichissement sans cause is possible where the conditions of neither mandat or gestion d'affaires are fulfilled.53 An example may be found in a decision of the Cour de cassation in 1984 in which the former husband of a child's mother had paid her maintainance in respect of the child's upkeep after divorce.54 After the child's mother and natural father obtained its legitimation (the effect of which was retroactive), the former husband successfully sued the child's natural father on the ground that his payments to the mother enriched the natural father sans cause, since his own obligation to maintain the child had been retroactively put to an end on legitimation. Of the conditions for recovery on the ground of enrichissement sans cause,55 the most significant hurdle in the context of performance of another's obligation appears to be that the performance was made without fault on the part of the third party.56 In common with the position more generally, a distinction is to be drawn here between a third party who acts in bad faith (notably where his intervention constitutes a deliberate breach of an applicable rule57) and where he acts merely negligently.58

The French position in relation to article 1236 may therefore be summarised as follows.

First, a creditor may not reject tender of due performance by a third party to the obligation unless the creditor has an interest in doing so or the debtor has agreed or does agree with the creditor that the third party should not perform. There are, on the other hand, no exceptions to this rule on the ground that the debtor has not authorised the third party performance nor on the ground that the creditor considers that the debtor would be prejudiced by his acceptance of due tender.

Secondly, if the creditor accepts tender of due performance by a third party, then the debtor is thereby discharged vis-à-vis the creditor himself.

Thirdly, where the creditor accepts third party performance, if the third party has an interest in performing or if he pays "in the name of and to discharge the debtor" then, while the debtor is discharged vis-à-vis the creditor, he still owes the same obligation to the third party who is subrogated to the creditor's rights. Again, there is no distinction in this respect according to whether the third party intervenes with or without the debtor's authority.

Fourthly, where the tender of performance of another's obligation by a third party in order to discharge the debtor is accepted by the creditor, that third party will possess an independent recourse against the debtor (quite apart from any subrogated rights he may have) if he can establish a recognised legal ground for so doing whether this is mandat, some other relationship from which the performance arose (as with caution), gestion d'affaires or enrichissement sans cause. In this way, while French law does not make the debtor's authority a condition either for discharge of an obligation by the third party nor of the latter's recovery, the debtor's interests are by no means left unprotected.

At this stage, it may be helpful to recall the position in English law, which differs significantly from its French counterpart.

First, in English law the question as to whether a creditor of an obligation must accept tender of performance by a third party is dealt with by it in terms of "vicarious performance."59 In this respect, in general the creditor may not reject tender of performance by a third party who performs on behalf of the debtor and with his authority, the exceptions to this position being made for the cases where the nature of the obligation is "personal" in the sense that the creditor relies on the skill and judgment of the debtor and where the terms of any contract from which the obligation arises exclude performance by a third party.60 As regards tender of performance, it may be thought that the whole notion of vicarious performance is predicated on the idea that the third party performs on behalf of the debtor and that therefore a creditor should not be required to accept tender of "performance" by a third party who acts other than on behalf of the debtor.61 This does not mean, however, that the debtor has actually to have authorised the "purportedly vicarious performance" at the time of tender and there is authority which suggests that a creditor is not justified in refusing due performance if tendered on behalf of the debtor.62

Secondly, the effect of tender of due performance in English law is in general to relieve the debtor of liabilities for failure to perform. Due tender is assimilated to performance itself and will give rise to the plea of tender as a defence to any subsequent action against him for failure to perform: there is no need in English law for a doctrine such as mora creditoris.63 Where the obligation in question is one to pay money, then a successful plea of tender will not of itself discharge the debt, but if the creditor sues, the debtor's payment into court and proof of continued willingness to pay since tender will bar any claim for interest or damages after tender.64

Thirdly, at least as regards payment of another's money debt,65 where the creditor accepts tendered performance by a third party, the generally accepted position is that the debtor is discharged only if the third party acts on behalf of the debtor with the intention to discharge him and with his authority (whether actual or subsequent by ratification).66 Exceptions to this position are made where the payment is made under compulsion of law (that is, to avoid the threat of the legitimate application of legal process) and, less certainly, necessity.67 On the other hand, it is been argued by others that payment of another's debt should be held to discharge the debt even where the debtor gave no authority.68

Fourthly, there is a similar division of opinion as to possible restitutionary consequences of the payment of another's debt. Those who hold that authority is required for discharge, allow restitution from the debtor in favour of the payor only where discharge has occured and where there is an independent unjust factor, such as mistake or necessity, but they argue that in the absence of discharge, the payor may recover from the creditor on the ground of failure of consideration.69 Those who argue for discharge in the absence of debtor authority also argue for the existence of a wider area of restitutionary recovery from the debtor and, conversely, a narrower one from the creditor.70

It has been said that the original purpose of the common law rule was the concern to protect a debtor from the imposition of an undesired creditor, but assuming this is so, the present free assignability of rights (even with its formalities) suggests that this is no longer a convincing legal policy. Apart from this concern and from disagreements about the proper interpretations of the (admittedly complex) common law authorities,71 the dispute between these two positions centres to a considerable extent on the availability of possible restitution against the creditor in the absence of discharge of the debtor and, of course, on the general concern of English law to discourage "officious intermeddling."72 A further concern of those who support the traditional English position is that it protects the position of the debtor, for if the third party is able by payment to gain an independent restitutionary right against the debtor, then the latter may lose the benefit of any defences and, even more, counterclaims which he may have against the creditor.73

The differences between the English and French positions in this area stem partly from their different authoritative bases and historical sources. However, they are also based on the well-known different positions taken in particular to the intervention of a person in the interests of another but without his consent: in French law, the officious intermedler is discouraged by the more subtle restrictions on the availability of recovery under gestion d'affaires and enrichissement sans cause, rather than on any broader exclusionary rule. And where the third party has an "interest" in paying, then he is not thought to be "intermeddling:" it is his own affair (even if it wasn't previously) and he can recover either by way of legal subrogation or personally and independently without the benefits or the disadvantages which subrogation entails. Furthermore, French law protects the debtor's rights of defence or counterclaim against the creditor in two ways: first, by using the technique of subrogation, where the third party's claim is subjected to the same constraints as the creditor's and secondly, as regards claims on the basis of enrichissement sans cause by setting the measure of restitution at the lowest value as between the "impoverishment" of the claimant and the "enrichment" of the defendant,74 for the debtor's enrichment by the third party would be less than the latter's impoverishment if the debtor would not have had to have paid (as much) to the creditor.

However, in turning to the second situation of this discussion, it will be seen that English law does sometimes consider it not merely not officious but actually a "duty" for a person other than a debtor of an obligation to perform or have performed the obligation: this is the light in which I suggest we may view the English law of mitigation of damage.

III. The faculté de remplacement: article 1144 C. civ.

Again, though, my starting point is a provision of the French Civil Code: but here it refuses to allow intervention by the non-debtor without judicial authorisation. The provision in question relates to much wider questions about the nature of performance of contractual obligations and this requires a brief introduction.

Many common lawyers are aware that French law takes a very different attitude than does English law to the primary remedy for breach of contract:75 French lawyers accept that a creditor of a contractual obligation has a right to performance by the debtor.76 This is put in terms of the availability of exécution en nature, (or performance in kind) a type of court order which may be backed up by the threat of the payment of a money sanction (or astreinte) in respect of the time when the court order is not obeyed, when the order is termed exécution forcé en nature. Such a direct order of exécution en nature is ruled out by French law only when performance by the debtor is impossible, this including not merely physical impossibility but also "moral impossibility," which notably includes the position where the debtor's obligation is too personal to be enforced against him.77

This system is certainly a triumph of juristic interpretation and judicial invention. Judicial invention because until 1972 astreintes had no legislative basis and were justified (entirely unconvincingly) on the basis that they were a form of damages;78 juristic interpretation, because the terms of the Civil Code suggest quite the opposite position and strikingly announce in article 1142 that every obligation to do or not to do gives rise to damages in the case of its non-performance by the debtor.79

Clearly, this provision was enacted in the Civil Code because its drafters were sufficiently imbued with enlightenment thinking that they thought it contrary to personal liberty for an individual to be ordered to perform his private law obligations. However, it is not this provision which principally concerns us, but rather article 1144, which originally stated that

The creditor may also, in the case of non-performance, be authorised to have the obligation performed at the expense of the debtor.80

This possibility for a creditor is known generally as the faculté de remplacement.

To a common lawyer, this is a rather odd provision: why should the court be involved in these circumstances? How does this relate to the Civil Code's provisions on non-performance? However, the reason why I wish to include it in my discussion is that article 1144 clearly provides a system of control for the actual achievement of the debtor's prestation (and in this sense performance) by someone other than himself, this someone being either the creditor himself or a third party. Originally, the provision, which was included in the Civil Code only on the suggestion of the Tribunal d'appel of Montpellier,81 was seen as a qualification on the principle laid down in article 1142, as it provides a judicial mechanism by which the creditor of a contractual obligation may receive the exact performance (prestation) which is due to him, even if this does not come from the debtor himself. This being the case, those jurists who believed that the nature of obligations argued in favour of a court being able (in principle) to order their performance, saw support for their view in article 1144 (and in article 1143, which concerns orders of judicial destruction of things made in contravention of a negative obligation). In the result, article 1142 came to be seen as providing for the exception (where performance is physically or morally impossible) and article 1144 came to be seen as an example of exécution en nature which applied to obligations de faire, even though article 1144 does not involve the debtor being ordered to perform his obligation. Here, then, exécution en nature is "performance in kind" only from the point of view of the creditor.

There are three particular further features of article 1144 to which I wish to draw attention.

First, in principle a creditor must put the debtor on notice to perform (mise en demeure) and then go to court to ask for authorisation to have the debtor's obligation performed by someone other than the debtor. It is available to a creditor only as regards those obligations whose performance by a person other than the debtor is properly possible and this excludes those obligations which are personal to the debtor or which concern the supply of ascertained property owned by the debtor.82 Before 1991, a creditor may have been so authorised by a court and then find himself without actual recourse against the debtor (if the latter became insolvent) and so in that year article 1144 was amended so as to provide that the court may order the debtor to provide the money in advance of the commissioning of the performance by a third party.83 While recourse to court may seem an unnecessarily delaying element in the process, it should be recalled that French civil procedure does possess an accelerated procedure for urgent cases before the juges des référés, a procedure which has been much used in relation to article 1144 C. civ.84

Secondly, while it has been argued that as a form of exécution en nature, the creditor should have a right to demand authorisation,85 the courts recognise in themselves a discretion as to whether or not it should be awarded.86 In practice what this means is that instead of authorising third party performance, a court may give time to the debtor to perform himself,87 may order the debtor to perform the contract (if appropriate backed up with astreintes) or simply award the creditor damages.88 If the creditor is authorised to have the obligation performed at the debtor's expense, then, once this has occured, the debtor is released from his obligation (even though the contract is not terminated).89 Clearly, this discretion gives the courts considerable power to control the situations in which the creditor may substitute a third party's performance for the debtor's. For, as Wéry has observed, when a third party is substituted to performance, the debtor is ousted from his own obligation, from whose performance he may have been counting on benefiting.90

In this respect,there is a clear relationship to the Civil Code's attitude to termination of bilateral contracts on the ground of a party's breach (résolution), for article 1184 provides that the injured party must in principle ask the court to terminate the contract and it expressly recognises in the court a discretion to give the debtor more time to perform if it thinks this appropriate, even when the seriousness of the debtor's breach otherwise would justify the termination of the contract.91 The Cour de cassation has therefore held that where the debtor offers to perform, the lower courts will normally refuse résolution unless they consider the offer to perform too late.92 The faculté de remplacement therefore has in common with résolution judiciaire the ousting of the debtor from his own performance and both are subjected to judicial control. In my view, what unites articles 1144 and 1184 is a concern to protect the debtor's interest in performing, an interest which in the context of the procedure of offres réelles is even put sometimes in terms of the debtor's right to perform.93

The principal (and very important) exception to the requirement of judicial decision in relation to the termination of the contract for non-performance is the recognition of express contract terms (known as clauses résolutoires), which give to the injured party a right to terminate the contract and such a term has the advantage from the injured party's point of view of avoiding the judicial discretion which goes with the need to have recourse to court, and not merely the delay and expense of doing so.94 However, there is no mention in the French texts of a practice or discussion as to the effectiveness of clauses de remplacement, by which a party is contractually entitled to have the debtor's obligation performed without recourse to court,95 and there are instead three other types of exception: first, a creditor need not go to court in cases of urgency (i.e. greater urgency than even the accelerated civil procedures can deal); secondly, in cases of commercial sales, both seller and buyer may go into the market and sell or buy if they are let down by the other party and, thirdly, legislation allows certain specific instances where the creditor may arrange a substitute performance of his own volition.96 Of the latter two, it can be said that either commercial needs (and commercial practice) or some other special consideration justify the potentially prejudicial effect on the debtor's right to perform which they allow. The exception on the ground of urgency is more interesting and while the French case law here is far from systematic, the general view is that it will apply only where the the expenses thereby incurred by the debtor in securing substitute performance are "urgent, indispensable and effected in the most economical way."97 What this means in practice is that if the creditor of an obligation considers the matter to be urgent and wishes to procure substitute performance elsewhere, he may do so, but risks (i) being told subsequently by a court when he seeks to recover his expenses from the debtor as damages that the situation was not in fact urgent or that the expenses were not indispensable or sufficiently economical and (ii) the debtor deciding in the meanwhile to tender performance himself (though the latter possibility may be avoided if the creditor is able to exercise a right to terminate the contract arising under a express contract term).98 In the result, therefore, the French courts are again able to verify whether the debtor should in the circumstances be deprived of his right to perform; this is effected either by prior or subsequent judicial control.

In this way, French courts are able in the context of article 1144 to protect the debtor's interest by reference to similar but by no means identical criteria to those found as a matter of article 1236 and paiement by a third party. For the judicial discretion as to the appropriateness of creditor intervention exercised for the purposes of the faculté de remplacement may be seen as performing a similar function to the requirement of "utility" as regards recovery by a third party as a matter of gestion d'affaire, discharge having been effected under article 1236: in both situations, a central concern is the need to protect the debtor's interests, even while at the same time relieving him from further performance.99 In both, the debtor's attitude is significant: if the debtor forbids paiement by a third party, then the latter cannot recover under gestion d'affaires; if the debtor offers to perform himself, a court will not authorise remplacement nor is it likely to think justifiable a creditor's unilateral recourse to substitute performance.

However, there are clearly considerable differences between the respective domains of articles 1236 and 1144. Article 1236 is concerned with the effect on performance of any type of obligation by a third party (whether or not authorised by the debtor): while there is no exclusion of third party intervention at the request of the creditor, the system which it creates applies only to performance undertaken in order to discharge the debtor vis-à-vis the creditor by the use of the third party's own resources (and not the creditor's).100 As to consequential recourse, under article 1236 it is the third party who may be entitled to recover in respect of the substitute performance which he has undertaken, whereas in the case of 1144 it is the creditor for the cost of obtaining substitute performance by the third party.

We have seen that article 1236 of the Civil Code distinguishes between performance by interested and non-interested third parties, this accounting in part for the different grounds of recourse, either by way of subrogation by operation of law or an independent right of recourse.101 Moreover, if recovery after paiement under article 1236 is based on gestion d'affaires, then the third party must be found to be acting on the basis of a limited altruism: not entirely in his own interest, but on the other hand, not so generously as to be not looking for any indemnity. While the law governing the faculté de remplacement recognises that the creditor does have an interest in procuring a substitute performance in the absence of performance by the debtor, it denies the creditor a right to do so; instead, the creditor's interest in procuring substitute performance is balanced by the courts against the debtor's interest in performing himself.

Finally, we should note that while paiement for the purposes of article 1236 is not restricted to payments of money, these are the typical kind of performance by third parties who act neither from their own interest nor with the debtor's authority and, therefore, also the typical context in which the availability of recourse by the third party based on gestion d'affaires (or, indeed, enrichissement sans cause) arises. By contrast, the faculté de remplacement is restricted to contractual obligations de faire and while obligations de faire may sometimes be said to include obligations to pay money,102 in practice, article 1144 is concerned with substitute performances for obligations to deliver generic property other than money and obligations to perform services. For French law treats the enforcement of money obligations to a distinct regime, providing for the recovery of interest at a legally determined rate (but in principle, no more) but also giving a discretion to courts to allow the debtor time to pay.103 Therefore, while it is not meaningless to suggest that a creditor of a money obligation should be able to obtain "performance" from a third party by way of a loan (at an interest which they agree), the expenses thereby incurred by the creditor to be paid by the debtor, such a procedure would disrupt this special regime which the law has put in place which balances the interests of creditor and debtor of sums of money.

English law knows no technical equivalent of the faculté de remplacement and its starting point for the remedies available on breach by a debtor of his obligation is fundamentally different. As with French law, English law recognises the right of a creditor of a money obligation to have it enforced, this being put in contractual terms as a matter of the action for the agreed contract price, "specific performance" at common law. However, while there is nothing to stop a creditor of a money obligation from going into the market and obtaining "substitute performance" from a third party by way of a loan at interest, English law has traditionally taken a restrictive attitude to recovery of such an expense against the debtor. The general common law rule is that no interest is recoverable for delay in payment of a debt,104 but interest may be stipulated and the courts enjoy by statute a considerable power as to the award of interest.105 Moreover, the courts have accepted that a creditor may be able to recover damages for breach of contract for loss incurred by obtaining money at interest owing to debtor's lateness in paying, as long as this loss was "within the reasonable contemplation of the parties" given the debtor's knowledge of the creditor's particular circumstances.106

As regards all other positive obligations, English law's starting point is in damages, it being still generally true that specific performance is not available where damages are an adequate remedy, even though a somewhat more flexible approach has at times been taken to the availability of the equitable remedy on the basis of its appropriateness in the circumstances.107 Now in many cases damages are indeed an adequate remedy, because the law allows a creditor to go out into the market and obtain a substitute performance for the debtor by way of mitigation of his own damage when it is reasonable to do so; indeed, if he does not do so, he will lose the right to compensation for the loss which he suffers as a result of the debtor's breach.108 In this way English law gives a direct incentive to a creditor to obtain third party performance of a debtor's obligation and, if a creditor does mitigate in this way he does indeed receive what he was owed under the obligation (the prestation, in French terms), even though he does not receive it from the debtor.

The advantage of the English approach here, by contrast with the French, is that the creditor does not even in principle have to wait for judicial authorisation to obtain third party performance and this avoids the inconvenience, expense and delay of judicial proceeding. On the other hand, the disadvantage of the English approach is that, having engaged a third party, a creditor risks not being able to recover the costs of substitute performance. Such a failure to recover may be caused by the debtor's insolvency: for in English law there is no possibility, as there is in French law, of being granted an amount of money in advance from the debtor to cover the cost of obtaining a substitute. Moreover, a creditor who mitigates his loss also risks a court subsequently considering his action unreasonable, for the absence of prior authorisation should not disguise the fact that in English law there is judicial control of the creditor's substitution of a third party (or himself) for the debtor, but it is effected a posteriori by a court seized with a claim for damages by the creditor to recover the expenses thereby incurred.109 As we have said, the test here is one of reasonableness, but it should be noted that this is to be assessed as at the time of breach (or reasonable notice of breach) rather than in its result and this means that while the purpose of the law of mitigation is to reduce the creditor's losses, if the creditor's purported acts of mitigation were reasonable at the time, he will be able to recover their cost, even if the result increased his own losses.110

Here there is again a certain analogy with the traditional requirements of gestion d'affaires. For in mitigating, the creditor acts not merely in his own interest, but in the interest of the debtor (to reduce his liabilities)111 and the application of the reasonableness test could be thought to operate somewhat like the criterion of utility for the gérant's intervention. What is clear, though, is that in English law there is certainly no need for the debtor's consent before the creditor is entitled to mitigate (and thereby have the debtor's obligation performed by a third party), though a debtor's own later offer of due performance may be relevant to the reasonableness of the creditor's mitigation.112


From what has just been said, it can be seen that even if in English law a third party cannot effectively discharge another's money obligation without the latter's authority, a creditor of a non-money obligation may do so and then recover from the debtor its cost, whether the debtor approves or not, though subject to the control of the "reasonableness" of his doing so. In French law, by contrast, a third party may perform the debtor's prestation even without his consent, but may recover from him only if he can establish a legal ground for doing so, whether gestion d'affaires or enrichissement sans cause. On the other hand, in French law in general a creditor of a contractual obligation to do may not have the obligation performed by a third party without prior authorisation by the court. In both these situations, French courts can be seen to protect the debtor's right to perform. In all, though, under both the English and French systems, it is clear that contractual obligations are very frequently "performed" by third parties: either at the request of the debtor (whose agents therefore "vicariously perform" the debtor's obligation) or at the request of the creditor (on breach and for reward by the creditor, either with or without the need to have recourse to court).


* Fellow and Tutor in Law, St. John's College, Oxford. The author wishes to express his gratitude for comments on an earlier draft of this paper made by participants at the colloquium held in Cambridge in April, 1999.

1 This article will discuss the French private law position and not raise in its discussion of English law the question whether its treatment of the performance of public law duties by third parties differs from its treatment of private law contractual duties.

2 The relationship between obligation and prestation is usually found in French texts in their analysis of the requirement of objet for the validity of a contract: see arts. 1126 - 1130 C. civ.; François Terré, Philippe Simler, Yves Lequette, Les obligations (6th ed. 1996), pp. 215 ff. and Barry Nicholas, The French Law of Contract (2nd ed., 1992), pp. 114-115.

3 See arts. 1136 and 1142 C. civ.

4 Nicholas (n. 2), p. 115 explains that there is a further level to the analysis, according to which the subject matter of a prestation is said to be la chose. So, for example, in the case of sale, "a seller's obligation is, among other things, the prestation consisting in the conveyance of the thing, and ... the objet of that prestation is the thing (chose) itself."

5 A further and different significance is to be found in relation to paiement de l'indu, where paiement is to be understood as refering only to the performance of obligations to transfer property, whether movables (including and typically money) or immovables. This more restricted usage results from French law's treatment of restitutionary recovery in respect of "undue services" as a matter for enrichissement sans cause rather than répétition de l'indu: see Simon Whittaker, Chap. 10, Obligations, in John Bell, Sophie Boyron and Simon Whittaker, Principles of French Law (1998), p. 407.

6 "Le paiement est l'extinction de l'obligation part son exécution:" Philippe Malaurie and Laurent Aynès, Droit civil, Les obligations, (8th edn., 1997), p. 557. Pothier, termed thisle paiement réel, i.e."l'accomplissement réel de ce qu'on s'est obligé de donner ou de faire.' Traité des obligations, no. 494, Oeuvres de Pothier, (Paris, 1821), Les obligations, Tome 2, p. 2.

7 Below. Use of the verb "acquitter" is no more conclusive: it normally refers to the discharge of the debtor, but art. 1236 C. civ. uses it as regards paiement by third parties who benefit from subrogation where the debtor is discharged only vis-à-vis the creditor.

8 "L'accomplissement de la prestation qui forme la matière de l'obligation:"C. Aubry and C. Rau, Cours de droit civil français d'après la méthode de Zachariæ (6th ed., 1936 by E. Bartin) Tome 4, § 315, p. 220.

9 Below.

10 "Une obligation peut être acquittée par toute personne qui y est intéressée, telle qu'un coobligé ou une caution.
L'obligation peut même être acquittée par un tiers qui n'y est point intéressé, pourvu que ce tiers agisse au nom et en l'acquit du débiteur, ou que, s'il agit en son nom propre, il ne soit pas subrogé aux droits du créancier." Although I have translated "acquitter"" as "to discharge," as has been noted, this does not mean that the obligation is necessarily altogether extinguished, for where the third party is subrogated to the creditor's rights, the debtor's obligation is discharged only vis-à-vis the creditor himself: see above, n. 7.

11 There is a further qualification that in order to constitute valid paiement, the payor must be the owner of the thing and capable of alienating it (art. 1238 C. civ.) but this need not detain us.

12 "L'obligation de faire ne peut être acquittée par un tiers contre le gré du créancier, lorsque ce dernier a intérêt qu'elle soit remplie par le débiteur lui-même."

13 Pothier (n. 6), nos. 495-500, pp. 3-8.

14 See Whittaker (n. 5), pp. 398-403 on the difficulties of using the terminology of "restitution" in the French context.

15 Malaurie and Aynès (n.6), p. 559.

16 Below.

17 Joseph Issa-Sayegh, 'Extinction des obligations, Paiement: Caractères généraux. Parties. Effets' in Juris-Classeur civil, art. 1235 à 1248 , Fasc. 64 à 67, no. 59, p. 11.

18 Civ. 24 Jun. 1913, DP 1917.1.38.

19 Civ. (3) 23 Feb. 1972, Bull. civ. III, no. 126, p. 92.

20 Issa-Sayegh (n. 17), p. 10; Boris Starck, Henri Roland and Laurent Boyer, Droit civil, Les obligations, 3. Régime général, (5th ed, 1997), p. 63; Req. 7 Jun. 1937, DH 1937.427 (where the third party was held able effectively to intervene despite the agreement of the debtor and creditor to the contrary, as it was found by the lower court that the agreement had been 'fraudulent'); Civ. 29 May 1953, D 1953.516 (where the third party had an interest in intervening and the parties no legitimate interest in refusing intervention).

21 Issa-Sayegh (n. 17), p. 10, citing Aubry and Rau (n. 8), no. 316, p. 221, note 2 (who disagree with Pothier in this respect on the basis that article 1236 does not so restrict third party paiement).

22 Cf. Pothier, Traité des obligations, Vol. 2, no. 500 p. 7 who does indeed refer to putting the creditor en demeure. On the rejection of this idea in the modern law, see Terre, Simler, Lequette (n. 2), p. 1004, ft. 1 noting the contrary position in German law found in B.G.B. § 293. For criticism of this rejection, see Cécile Robin, 'La mora creditoris' 1998 Rev. trim. dr. civ. 607.

23 This procedure is known as "offres réelles avec consignation" and is provided for by art. 1257 et seq. C. civ. and arts. 1428 et seq. N. c. civ. proc.

24 Art. 1257 al 1 C.civ. According to Henri, Léon and Jean Mazeaud, Leçons de droit civil, Tome II, Vol. I, Obligations, théorie générale, (8th edn., 1991) by François Chabas, p. 954, n. 3 following J. Courrouy, "La consignation d'une somme d'argent est-elle un payement?" Rev. trim. dr. civ. 1990.23, even after consignation and court approval, the debtor's discharge does not mean that there is paiement nor is there therefore an end to the relationship of obligation between the parties.

25 Terré, Simler, Lequette (n. 2), p. 1004.

26 Such a denial could be based on the idea that a creditor's failure to accept tender of due performance would constitute breach of his obligation de loyauté and that this breach would mean that the creditor would not be allowed to terminate the contract for non-performance, to rely on the debtor's own non-performance as a defence (the exception d'inexécution) nor recover damages: see Robin 1998 Rev. trim. dr. civ. pp. 611-612, 625 ff.

27 Subrogation by operation of law is known as subrogation légale. Subrogation may also take place by agreement, this being known as subrogation conventionnelle.

28 Arts. 2028 al. 1 & 2029 C. civ. Where joint debtors are liable solidairement (i.e. jointly and severally) payment in full by one gives rise to a right of recourse against the others to the limits of their own part share: art. 1214 C. civ.

29 A lien (droit de rétention) has been held opposable against third parties even if they are not themselves liable on the debt: Civ. (1) 7 Jan. 1992, Bull. civ. I, no. 4, p. 3.

30 Starck, Roland and Boyer (n. 20), pp. 41 ff.

31 Michel Cabrillac and Christian Mouly, Droit des sûretés (3rd ed., 1995), p. 195.

32 Cabrillac and Mouly (n. 31), p. 195 and see Civ. 25 Nov. 1891, DP 1892.1.261.

33 Two further situations are not dealt with in the text. First, where a third party pays another's (false) debt, thinking the debt genuine, the third party may recover his paiement from the creditor as being undue: arts. 1235 al. 1, 1376 C. civ. Secondly, where a third party pays another's (true) debt in his own name thinking himself the debtor (which he is not), then he may not recover against the true debtor (see Whittaker (n. 5), p. 411 and cases there cited), but he may recover from the creditor: Starck, Roland and Boyer (n. 20), p. 128.

34 Issa-Sayegh (n. 17), no. 62, p. 11 citing Com. 14.11. 1975, D 1976 IR 26.

35 Aubry and Rau (n. 8),p. 222, n. 9. Art. 1250 al. 1 C. civ. provides that subrogation conventionelle must be expressly provided for and made at the same time as performance of the debtor's obligation.

36 Aubry and Rau (n. 8), p. 220; Marcel Planiol and Georges Ripert, Traité pratique de droit civil français (2nd. ed., 1954) T. VII, Obligations, p. 552. Paiement may also be made to the creditor under a contract between the debtor and the third party such as insurance.

37 Civ. (1) 15 May 1990, JCP 1991.II.21628 note Bruno Petit, D 1991. 538 note G. Virassamy.

38 Petit (n. 37), p. 36.

39 Cf. Petit,(n. 37), p. 37.

40 Civ. (1) 2 Jun. 1992, D 1992 somm. 407 note Philippe Delebecque.

41 Civ. (1) 23 Feb. 1999, pourvoi no. 95-18.860 (unreported).

42 Delebecque (n. 40).

43 Cabrillac and Mouly (n. 31), p. 194.

44 Art. 1984 C. civ.

45 Art. 1999 C. civ.

46 Again, in the case of payment in money this assumes that the third party paid from his own resources. In this respect, the presumption is that a person who pays in his own name does so from his own resources, but this presumption may be rebutted. Thus, if the court finds that the third party paid with the debtor's own resources, clearly he cannot be reimbursed: Req. 18 Feb. 1901, DP 1901.1.303.

47 Art. 1375 C. civ. An early application of gestion d'affaires in this context, see Civ. 8 Jan. 1862, DP 1863.1.75. For an introduction to gestion d'affaires in English, see Whittaker (n. 5), pp. 403-406.

48Gestion d'affaires may arise whether or not the gérant acts in the name of the maitre d'affaires, though if he acts in his own name in entering legal transactions with third parties, any recourse of the latter is in principle available only against the gérant and not the maître d'affaires: Jacques Flour and Jean-Luc Aubert, Les obligations, 2. Le fait juridique, (6th ed., 1994), no. 17, p. 22. Trib. Inst.Strasbourg 9 Jul.1954, GP 1954.2.350 is an example of its application, where no mention is made of whether the performance was or was not made in the debtor's name. Cf. Issy-Sayegh (n. 17), no. 67, p. 12 and Starck, Roland and Boyer (n. 20), p. 63 who both assert that performance by a third party other than in the name of the debtor can give rise to recovery only on the basis of enrichissement sans cause.

49 Cf. Virassamy (n. 37), p. 541 and Marc Billiau obs. JCP 1992.I.3632 no. 6 who criticise the position there taken by the Cour de cassation on the ground that this issue is thereby avoided. The issue of utility is judged from the point of view of the would-be gérant. to whom intervention must appear to be useful: Boris Starck, Henri Roland and Laurent Boyer, Droit civil, Les obligations, 1. Le contrat, (6th ed, 1998), p. 750; Flour and Aubert (n. 48), p. 16.

50 Philippe Derouin, 'Le paiement de la dette d'autrui, Répétition de l'indu et enrichissement sans cause' D 1990. Chron. 1.

51 Malaurie and Aynès (n. 6), p. 530 (concerning gestion d'affaires generally) and Com. 21 Nov. 1978, Bull. civ. IV no. 271, p. 223 (where the lack of consent stemmed from a prior contract term between the debtor and the third party).

52 Alain Bénabent, Droit civil, Les obligations (4th edn.,1994), p. 217. An example of a refusal being illegitimate may be found in Civ. (1) 11 Feb. 1986, GP 1986.2. somm. 507 note A. Piédelièvre in which a son paid the monthly installments of his father's loan, despite the father's opposition; the court accepted that this was a case of gestion d'affaires for the father's opposition was not justified by the family's interest.

53 The principle of the subsidiarity of the action de in rem verso rules it out only where the law provides an effective remedy or where such a remedy is barred by a legal obstacle: Whittaker (n. 5), pp. 416 -417.

54 Civ. (1) 1 Feb. 1984, D 1984.388. It is to be noted that the subsidiary nature of the action de in rem verso did not prevent the former husband's recovery, despite his possessing a claim for répétition de l'indu from his former wife (who was insolvent).

55 On which see Whittaker (n. 5), pp. 413 ff.

56 Virassamy D 1991. p. 541; Petit JCP 1991.II.21628 p. 37.

57 e.g. Civ. (1) 3 Apr. 1979, D 1979.IR.408 (where the third party was held to act "dans son proper intérêt et à ses propres risques").

58 Derouin D 1990. Chron. 1, pp. 201-202 and see for a general affirmation of the availability of recovery on the basis of enrichissement sans cause despite the claimant's negligence: Civ. (1) 11 Mar. 1997, D 1997.407 note Marc Billiau. It would seem that the effect of the latter decision is that the payer's negligence does not bar recovery on the ground of enrichissement sans cause, but this leaves the possibility of set-off by the debtor on the ground of a claim for delictual fault based on the third party's negligence under art. 1382 C. civ. (on this in general terms, see Billiau, ibid. at p. 409).

59 See G. H. Treitel, The Law of Contract (9th. edn., 1995), pp. 671 ff.

60 Treitel (n. 59), pp. 672-673. Cf. Chitty on Contracts, (28th ed., 1999) §§ 20-079 -- 20-081 which accepts the substance of this position, but does not distinguish sharply between the two.

61 Below near note 69.

62 Read v. Goldring (1813) 2 M. & S. 86.

63 G. H. Treitel, Remedies for Breach of Contract, A Comparative Account (1988), p. 41; Chitty on Contracts,§ 22-083.

64 Chitty on Contracts, § 22-084.

65 Some contend that as a matter of authority, the performance of obligations other than to pay money does discharge a debt without the authority of the debtor: Andrew Burrrows, The Law of Restitution (1993) p. 223, citing Gebhardt v. Saunders [1892] 2 QB 452.

66 Peter Birks, An Introduction to the Law of Restitution (revised edn. 1989), pp. 189-190; Robert Goff and Gareth Jones, The Law of Restitution (5th ed., 1998), pp. 16-17.

67 See Peter Birks and Jack Beatson, Chap. 7 "Unrequested Payment of Another's Debt" with a postscript by Jack Beatson in Jack Beatson, The Use and Abuse of Unjust Enrichment, Essays on the Law of Restitution (1991).

68 Daniel Freidmann, 'Payment of another's debt' (1983) 99 L.Q.R. 534; Burrows (n. 65), p. 222 et seq.

69 See especially, Beatson (n. 67), pp. 201-202. Goff and Jones (n. 66), p. 129 take a different view again, accepting the general position as regards discharge, but arguing for restitution against the debtor by means of subrogation in all cases except those involving maliciously officious intervention.

70 Freidmann (1983) 99 L.Q.R. 534, 539; Beatson (n. 67), pp. 201-202.

71 For their analysis see Birks and Beatson (n. 67).

72 For the leading authority on this approach see Falcke v. Scottish Imperial Insurance Co. (1886) 34 Ch. D. 234.

73 Beatson (n. 67), p. 203.

74 See generally, Whittaker (n. 5), pp. 418 ff.

75 See the observations of Lord Hoffmann in Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1997] 2 W.L.R. 898, 902-903.

76 Bénabent (n. 52), p. 177.

77 See generally, Nicholas (n. 2), pp. 216 ff; Whittaker (n. 5), p. 348.

78 The legal basis for the imposition of astreintesis now to be found in Loi no. 91-650 of 9 July 1991, arts. 33 - 37.

79 "Toute obligation de faire ou de ne pas faire se résout en dommages et intérêts, en cas d'inexécution de la part du débiteur." Somewhat oddly, though, art. 1184 C. civ., which is concerned with the availability of judicial termination of a bilateral contract on the ground of the debtor's serious non-performance, assumes that the injured party can force the debtor to perform his obligation if this is possible: art. 1184 al.2.

80 "Le créancier peut aussi, en cas d'inexécution, être autorisé à faire exécuter lui-même l'obligation aux dépens du débiteur."

81 Patrick Wéry, L'exécution forcée en nature des obligations contractuelles non pécuniaires (1993), p. 88, who notes that the faculté de remplacement was not discussed by Pothier as a general mechanism: ibid., pp. 66-67.

82 Philippe Simler, 'Classification des obligations, Distinction des obligations de donner, de faire et de ne pas faire' Juris-Classeur civil, art. 1136 à 1145, p. 28. For an example of a contract of supply of ascertained property, see Com. 20 Jan. 1976, D 1976 somm. 36.

83 Loi no. 91-650 of 9 July, 1991, art. 82.

84 Yves Chartier note to Trib. G. Inst. Dunkerque 3 Oct. 1984, GP 1985.1.154.

85 For the competing views, see Wéry (n. 81), p. 326 ff especially at p. 333.

86 Simler (n. 82), no. 139, p. 29 "Le juge saisi d'une telle demande d'autorisation apprécie son opportunité". Wéry (n. 81), pp. 329-330 notes Civ. 20 Dec. 1820, S 1819-1821.349 as the first decision to this effect, the court stating that "les articles invoqués du Code civil et particulièrement l'article 1142 [ sci. 1144] sont conçus en termes facultatifs qui laissent aux juges le pouvoir d'adopter le mode d'indemnité qui leur paraît le plus juste et le plus favourable à l'intérêt des parties."

87 Simler (n. 82), no. 136, p. 28.

88 Simler (n. 82), no. 139, p. 29, citing Req. 23 Mar. 1909, DP 1910.1.343.

89 Wéry (n. 81), no. 188, p. 261.

90 Wéry (n. 81), no. 199, p. 274.

91 Art. 1184 al. 3 C. civ.

92 Civ. (1) 17 May 1954, GP 1954.2.82.

93 For an older example, see Marcel Planiol, Traité élémentaire de droit civil, T. 2 (6th ed., 1912), p. 150. For more recent use, see Terré, Simler, Lequette (n. 2), p. 1004; Francis Kernaleguen,'Offres de paiement et cconsignation,' arts. 1257 à 1264, Juris-Classeur civil, p. 3; Robin 1998 Rev. trim. dr. civ., p. 608. For the procedure of offres réelles, see above, p. 00.

94 Terré, Simler and Lequette (n. 2), p. 485. The courts have recognised that such a contractual right to terminate must be exercised in good faith, on which see Whittaker (n. 5), p. 353. Such a clause in a consumer contract is subject to a test of fairness under art. L 132-1 Code de la consommation (implementing in French law Council Directive 93/13 of 5 April 1993 concerning unfair terms in consumer contracts).

95 Cf. the position in Belgian law, where clauses de remplacement are current both in private and administrative law contracts: Wéry (n. 81), no. 204 ff, p. 281 ff.

96 For these, see Simler (n. 82), nos. 140-141, p. 29. A special legislative example may be found in art. 1792-6 al. 4 C. civ. relating to the garantie de parfait achèvement in contrats d'entreprises. 

97 Soc. 7 Dec. 1951, D 1952.144 and see Malaurie and Aynès (n. 6), pp. 592-593.

98 There may be a further way in which the creditor may avoid this latter difficulty, for it has been said that the urgency (if it is exists) also justifies rejection by the creditor of any offer by the debtor to perform: Simler (n. 82), no. 140, p. 29.

99 See above, text  after note 58.

100 Above, , text  after note 58.

101 Above.

102 Simler (n. 82), no. 91, p. 20.

103 Art. 1153 C. civ. (as amended) provides the general rules for payment of interest for delay in payment of a money sum: exceptions are made where the debtor is in bad faith and in the context of commercial law and suretyship. Arts.1244-1 -- 1244-3 C. civ. (as amended in 1991) give to the court a general discretion to allow a debtor of a money obligation time to pay (a délai de grâce) of up to two years, this discretion being exercised taking into consideration the situation of the debtor, the needs of the creditor, the relative good or bad faith of the parties and their circumstances more generally (such as age or health): Starck, Roland and Boyer (n. 20), pp. 89 ff.

104 Treitel (n. 59), pp. 894 ff.

105 As regards interest on judgment debts, this is now contained in Supreme Court Act 1981, s. 35(A). As regards interest on commercial debts before judgment, see the Late Payment of Commercial Debts (Interest) Act 1998.

106 These phrases describe the so-called second limb of the test of remoteness of damage of the rule in Hadley v. Baxendale (1854) 9 Exch. 341. An example of recovery in this type of situation may be found in Wadsworth v. Lydall [1981] 1 W.L.R. 598.

107 See Treitel (n. 59), pp. 919 ff and see Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1997] 2 W.L.R. 898, 903 per Lord Hoffmann.

108 British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd. [1912] AC 673. Another way of looking at mitigation is in causal terms, so that it can be said that any losses suffered by a creditor after an unreasonable failure to mitigate are caused by this failure to mitigate, rather than by the debtor's breach.

109 Of course, this does not mean that all creditors have to go to court to recover compensation in this way, but any settlement agreed to between the debtor and the creditor is made on the basis of judicial attitudes to mitigation.

110 Chitty on Contracts § 27-098.

111 Cf. Donald Harris, Remedies in Contract and Tort (1988): "[i]t is in the interests of contract-breakers (as well as of society) that P [the promisee], the person in the best position to minimise the loss, should be encouraged to try to do so. P should be indemnified against his expenses in any reasonable attempt to mitigate, since such attempts are usually successful."

112 Chitty on Contracts, § 26-054.

© 2000 S. Whittaker. This HTML edition © 2000 University of Oxford.
This research has been supported by the network 'Common Principles of European Private Law', within the Training and Mobility of Researchers project (TMR) funded by the European Commission (Contract No ERB FMRX-CT97-0118), administered from Münster by Professor Dr Reinhard Schulze. The partner universities are: The University of Oxford (UK), Universidad de Barcelona (Spain), Humboldt-Universität zu Berlin (Germany), Université Jean Moulin Lyon III (France), Westfälische Wilhelms-Universität Münster (Germany), Katholieke Universiteit Nijmegen (Holland) and Università di Torino (Italy).
The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

Your must accept our disclaimer before you continue.
The Oxford University Comparative Law Forum is sponsored by CMS Hasche Sigle.