Court of Cassation Ruling on Contract Termination

Extract

[...] The plaintiff argued that in the absence of a characterised emergency, the tenant should have previously ordered the lessor to remedy the non-performance within a reasonable time, the notice having to recall that if the contract was not performed, it could be terminated. The question on which the Court of Cassation is then called to pronounce is therefore the following: does the dispensation of prior notice before unilateral termination of the contract necessarily imply the characterization of an emergency situation? The Court of Cassation responds negatively and rejects the appeal. [...]

[...] The innovation does not only lie in the recognition of another hypothesis of dispensation, but in the very nature of the criterion mobilized. The absence of a formal notice is no longer justified by the need to act quickly, but by the intrinsic inability of the formal procedure to achieve the corrective objective assigned to it by law. The Court thus substitutes a finalistic reading of the formal notice for a literal reading of the text. As long as it can contribute to restoring execution, it remains required. [...]

[...] The Court of Appeal has therefore, according to the High Jurisdiction, legally justified its decision. The Court of Cassation systematizes the criterion of vain character to dispense with prior notice when the gravity of the actions makes the alteration of the contractual link irreversible, so that any attempt at prior notice would be useless (II). I. The emergence of an autonomous criterion allowing to dispense with prior notice The unilateral resolution of the contract can result from the execution of sufficient gravity Exceptionally, the creditor may be dispensed from prior notice when it would be vain A. [...]

[...] Thus, by systematizing the character of futility of the formal notice as an autonomous criterion of dispensation, the Court of Cassation clarifies the regime of unilateral resolution by definitively dissociating the structural uselessness of the formality from the sole circumstantial urgency. It then remains to be assessed how this abstract standard materializes concretely when non-execution reaches a degree that irreversibly disintegrates the contractual link. II. The concretization of the criterion of character vain in the face of the gravity of non-execution The commented judgment provides a paradigmatic illustration of this character vain. The qualitative gravity of non-execution combines with the structural impossibility of maintaining the contractual relationship to justify the dispensation from the prior formality. [...]

[...] The character of futility becomes an instrument of rationalization of the law of prior formalities. The judgment could thus go beyond the field of commercial lease: it would participate in the elaboration of a general theory of the efficiency of formalities, founding their maintenance on their objective capacity to produce a useful effect. In this, it adopts a finalistic reading of contractual formalism, where the requirement of a formal notice only imposes itself if it remains capable of fulfilling its normative and teleological function. [...]