A rescission clause (clause résolutoire) is valid without listing the obligations whose non-performance it sanctions, provided the parties can identify those obligations clearly and unequivocally. The requirement of precision in Article 1225, first paragraph, of the French Civil Code does not mean enumeration. The commercial chamber so holds in a decision of 3 June 2026 and sets aside the ruling of a court of appeal that had annulled a clause covering any important obligation under the contract.
Key points
- The requirement of precision laid down in Article 1225, first paragraph, of the French Civil Code requires the debtor to identify clearly and unequivocally the undertakings whose non-performance will entail rescission by operation of law.
- A rescission clause remains valid even if it does not list the obligations concerned: the absence of a list is not enough to invalidate it.
- A clause providing that any non-performance of any of the obligations expressly set out in the contract entails rescission is valid, subject to the condition of clear and unequivocal identification.
- A rescission clause may only sanction a breach of an obligation expressly stipulated in the contract, and not of an obligation distinct from the one it covers.
- The contract law reform resulting from the legislative order (ordonnance) of 10 February 2016 has not tightened the conditions for the validity of such clauses compared with the previous law.
What the court of appeal held on the rescission clause
The commercial chamber partially quashes the court of appeal decision: the lower court judges could not annul a rescission clause solely on the ground that it did not list the obligations concerned (Com., 3 June 2026, No. 24-19.612). The dispute is between the holder of a package of television broadcasting rights to sporting events and the operator to which it sub-licensed those rights. The sub-licence contract, drafted in English, contained a rescission clause allowing immediate and automatic termination in the event of breach of an important or substantial obligation. The sub-licensee gave notice of termination on that basis in July 2021. The licensor brought proceedings against it to have the clause held non-compliant with Article 1225 of the French Civil Code, and therefore of no effect.
The decision under appeal (CA Paris, 31 May 2024, No. 22/14546) had declared the clause void. The Paris judges held that precision within the meaning of Article 1225 means the statement of an object defined by its detail, and that the reference to an important or substantial obligation did not satisfy that requirement. The commercial chamber sets aside this reasoning for lack of legal basis: the court of appeal relied on an ineffective finding without conducting the inquiry required of it (free translation).
A clause satisfies that requirement where it provides that any non-performance of certain obligations expressly set out in the contract will entail the rescission of that contract, where the obligations concerned can be identified clearly and unequivocally, regardless of the fact that they are not listed in that clause.
Precision of the rescission clause: what must be written?
The precision required by Article 1225 of the French Civil Code is a requirement of identification, not a requirement of a list. The provision requires the clause to specify the undertakings whose non-performance will entail rescission of the contract. The commercial chamber sets out the measure of it: the debtor must be able to identify clearly and unequivocally the undertakings concerned. It does not matter whether the clause lists them one by one. What counts is the outcome: on reading the contract, each party knows which breaches expose the agreement to lapsing by operation of law.
Two limits remain, inherited from the case law predating the legislative order of 10 February 2016 and recalled by the decision. A rescission clause may only sanction a breach of an obligation expressly stipulated in the contract. And where it covers the breach of a specified obligation, it cannot be applied to a distinct obligation. General drafting therefore does not open up an unlimited right of termination: it refers back to the obligations that the contract has actually imposed on the parties.
The commercial chamber expressly endorses a drafting model: the clause providing that any non-performance of any of the obligations expressly set out in the contract will entail rescission of that contract. Its validity remains subject to the condition that the obligations concerned be identified clearly and unequivocally. Sweeping drafting is therefore not condemned as a matter of principle; it is assessed in the light of the readability of the contract as a whole.
What the decision changes for existing contracts
The decision secures rescission clauses drafted in general terms, without removing the risk of annulment where the scope of the obligations remains uncertain. In this case, the first-instance judges had upheld the validity of the clause under Article 1225 of the French Civil Code. The decision under appeal then annulled it, reading the word "specifies" as a requirement of detail. The commercial chamber rejects that reading and refuses to see in it a break with the previous law: neither the preparatory works of the legislative order nor the parliamentary debates on the ratifying Act of 20 April 2018 reveal any such intention.
What remains open concerns the concrete assessment. The Court does not say that the clause at issue is valid: it criticises the court of appeal for not having examined whether the obligations covered could be identified clearly and unequivocally. The court of appeal to which the case is remitted will have to carry out that examination. The difficulty is real where, as here, the contract refers to the terms of a call for tenders and forms part of a set of linked agreements.
Which contract drafting habits should be adopted?
The drafting of a rescission clause is now assessed on the readability of the scope of the obligations concerned, rather than on the length of the clause. A clause referring to an important or substantial obligation with no other guidance exposes the party benefiting from it to a debate on its intelligibility. The drafter can reduce that risk by designating the obligations by precise reference to the articles of the contract, or by expressly characterising in the body of the contract the obligations regarded as essential.
Implementing the clause calls for the same rigour. In the case commented on, the clause made termination conditional on the expiry of a period of thirty days following receipt of a formal notice (mise en demeure) that had remained without effect, save for an irreparable breach allowing immediate termination. Those conditions of form and time limit are the ones the parties stipulated: they condition the effectiveness of the termination, irrespective of the validity of the clause itself.
A termination given on the basis of a clause subsequently held void or wrongly applied produces a formidable effect: the contract never came to an end. The creditor remains bound to perform, as illustrated by the orders issued in the course of the proceedings in this case. Before giving notice, verifying the contractual basis relied on and the reality of the breach therefore determines the security of the transaction.
Checks to carry out before giving notice of termination
- Check that the obligation allegedly not performed is expressly stipulated in the contract, and that it does fall within the scope covered by the rescission clause.
- Verify that the clause makes it possible to identify clearly and unequivocally the undertakings whose non-performance entails rescission.
- Comply with the formal notice and the time limit stipulated before giving any notice, except where the clause authorises immediate termination for an irreparable breach.
- Document the breach relied on and the chronology of exchanges, since challenges often concern the facts as much as the clause.
- Assess the risk of a termination held to be of no effect: the contract continues and performance may be ordered by the court.
Frequently Asked Questions
Must a rescission clause list all the obligations under the contract?
No. The commercial chamber held on 3 June 2026 that the requirement of precision in Article 1225 of the French Civil Code does not require the obligations concerned to be listed. The clause is valid if the parties can identify clearly and unequivocally the undertakings whose non-performance entails rescission. A clause covering any non-performance of any of the obligations expressly set out in the contract is therefore accepted, subject to that condition of identification.
Is a clause referring to an important or substantial obligation void?
Not automatically. The court of appeal had annulled such a clause on the ground that it lacked detail; the Cour de cassation quashed that analysis on 3 June 2026. The judge must examine whether the obligations covered can be identified clearly and unequivocally in the light of the contract. Validity therefore depends on that concrete assessment, which the court to which the case is remitted will have to carry out.
Has the French contract law reform made rescission clauses harder to draft?
No, according to the decision of 3 June 2026. The commercial chamber notes that neither the preparatory works of the legislative order of 10 February 2016 nor the parliamentary debates on the ratifying Act of 20 April 2018 reflect any intention to depart from the previous law on the conditions for the validity of rescission clauses. The requirement of precision in Article 1225 extends existing case law rather than tightening it.
What happens if a contract is terminated under a clause the court later disregards?
The termination is deprived of effect and the contract is deemed to have continued. The other party can then ask the court to order performance of the obligations and claim compensation for the damage caused by the interruption. In principle, a termination found to be unjustified engages the contractual liability of the party giving it. Checking the basis relied on before any notice is therefore decisive.
Is a formal notice always required before applying a rescission clause?
The answer depends on how the clause is drafted. Where it makes rescission conditional on a formal notice remaining without effect for a specified period, that prior step conditions the effectiveness of the termination. Some clauses set aside this formality for breaches that cannot be remedied. Reading the stipulation carefully, before any notice is given, avoids a termination being challenged on procedural grounds.