Extract
[...] So, the 2016 reform does not take up the distinction, but we can still use it. Section 2 - Means and Result Obligations > Creation by the praetor that we owe to René Demogue The idea behind this distinction is to be able to determine the intensity of the debtor's commitment With the result obligation, the debtor has committed to fully satisfying the creditor (contractual obligation) The obligation of means implies that the debtor must do everything to achieve what one wants (but no guarantee of success) Interesting from a proof perspective : Obligation of result: For the creditor, it's very simple to engage the debtor's liability: he only has to demonstrate a difference between what was expected and what was obtained (which necessarily constitutes a failure) Obligation of means: More difficult, the creditor will have to demonstrate that the debtor did not use all the means, technical on the proof plan > It is possible in the contract to arrange the nature of the obligation (specify if the obligation is of means or of result) If the parties have not taken the trouble to specify it in the contract, it will be up to the judge of the facts to perform this task (on the basis of a bundle of evidence) three indicators will allow this (according to the case law) : Risk : Was the debtor able to obtain the result, did they have all the available action levers, or were there natural risks necessary to achieve the desired result ? [...]
[...] But restitution is not admitted in the case of a natural obligation that has voluntarily acquitted' But it must be voluntary, if one pays when there is an error, there is no condemnation Chapter 2 - Qualification based on the object of the obligation > This is not specific to contract law BUT it has a high importance in this matter Section 1 - Obligations to do, not to do and to give > Difference since the reform of 10 February 2016 Before the reform, the Civil Code clearly referred to this distinction by article 1100 presentation of the three types of obligations that one can encounter (obligation to do, not to do and to give) The reform has made this distinction disappear (even if it still exists) The authors had criticized it by pointing out that the obligation to give is particularly rare (rarer than one might think) > The obligation to give is quite rare in law: refers to the transfer of ownership which is different from the obligation to deliver (delivering a baguette for example). However, the transfer of ownership of property is done automatically as soon as the contract is settled. However, it has sometimes been possible to influence the transfer of ownership: ex: clause of reservation of ownership = seller reserves the right of ownership until the occurrence of an event delays the transfer of ownership. > Thus, the criticism of the distinction is accurate, but we cannot deny it. [...]
[...] Section 4 - Plurality of Objects > It is possible in the contract to have only one obligation charged to the debtor (in the case of majority), or to have a series of unique obligations: ex: to maintain the thing for a certain period, then return it to its place, etc. These obligations are individualized but are in the same contract. [...]
[...] One of the interests is that in the event of non-performance of the obligation, the dissatisfied creditor has the choice between claiming damages and interest, or obtaining execution in kind (e.g. the judge will force execution). The obligations to do and not to do cannot be sanctioned in kind, but only by damages and interest, because if it is a doing obligation, this imposes a positive act from the debtor. For the obligation not to do, if it has been violated, it is that the person has done what they should not have done; how can there be a sanction in kind for this? [...]
[...] On the other hand, it is not because the Civil Code (more precisely article 1895) provides for this principle of monetary nominalism that we are automatically subject to it the contract can provide that the repayment will be made on the indexed amount of inflation we ensure we have the same value. When such indexing is provided, it must work in both directions, i.e. the indexing cannot only work in an upward direction, it must also work in a downward direction, which has been confirmed by the jp CIV 3rd 14 January 2016: a landlord had inserted a clause whereby the rent could only evolve upwards, meaning that during a deflation, the rent could not decrease. [...]
