Non-performance of commercial contracts

Is your liability being challenged or are you the victim of a contractual breach? Our firm can assist you in demand or in defence.

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Contractual non-performance: definition, sanctions and remedies

Contractual non-performance occurs when a party fails to fulfil an obligation arising from a contract. This failure can be total (the obligation is completely unmet) or partial (incomplete fulfilment). It can also be due to defective performance (poor fulfilment) or delay in performance.

How to prove non-performance of a contract?

To establish contractual non-performance, you must show:

a valid contract binding the parties
a specific obligation arising from that contract
a failure to perform the obligation attributable to the debtor

Why consult a lawyer in cases of contractual non-performance?

For businesses, non-performance can have significant financial consequences, including loss of turnover, supply or service contracts, damage to image and reputation, unforeseen expenses, and payment of damages.

Therefore, it’s essential to anticipate potential non-performance and act promptly when the first signs appear.

For claimants:

If you’re the victim of contractual non-performance, our firm can assist you in:

formalising any breach and triggering default interest
quickly reaching an amicable settlement with the opposing party’s counsel
obtain freezing orders in case of risk of non-payment
initiating legal proceedings (interim or full) if no settlement is reached

For defendants:

If you’re challenged by one of your contracting parties, our firm can assist you in:

preparing your defence against the claims of your co-contractor
responding to letters and formal notices from a legal perspective
quickly reaching an amicable settlement with the opposing party’s counsel
representing you before the courts in case of proceedings

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Frequently Asked Questions

What are the remedies in case of contractual non-performance under French law?

The victim of contractual non-performance may:

refuse to perform or suspend performance of their own obligation
seek specific performance of the obligation
obtain a price reduction
terminate the contract under certain circumstances
claim compensation for the harm caused by non-performance

Note: Compatible remedies may be combined, and damages can always be added.

What types of damages can be claimed in case of non-performance under French law?

Under Articles 1231-2 et seq. of the Civil Code, compensation covers:

Actual loss: unnecessary expenses, material losses, harm to reputation...
Lost profit: profit not realised due to non-performance

The assessment method is based on comparing:

The actual situation (with non-performance)
The hypothetical situation (without non-performance)

Note: The party in breach is only liable for damages that were foreseen or foreseeable at the time of contract conclusion – except where non-performance results from gross or wilful misconduct.

How to limit the risks of non-performance of commercial contracts?

The best way to limit the risk of contractual non-performance is to anticipate it when concluding the contract.

If you are negotiating an important contract, our firm can assist you to:

secure your contractual relationships with clear and precise obligations
ensure performance of your co-contractor’s obligations with penalty clauses and/or guarantees
define mechanisms for resolving potential disputes after contract signature