Case:
Bull. Civ. 1995.I, no. 347, p.243 Case Consorts Capdemourlin v. Société civile d'enseignementUBI
Date:
10 November 1995
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

In view of article 1152 Code civil:

Given that when contracting parties agree in advance on a lump sum payable in the event of non-performance of the contractual obligation this term constitutes a clause pénale:

Given that on 19 April 1991 M. Thierry Capdemourlin applied for admission to the Ecole supérieure d’action et de recherches commerciale for the year 1991-92 and paid the sum of 4,700 francs towards the tuition fee of 25,000 francs, that on 12 July he intimated that he was not going to proceed with the course, that the company running the school brought suit for the balance of the fee against M. Capdemourlin and his father, who had guaranteed his son’s obligation, basing itself on article 2 of its general conditions which provided that “the application is irrevocable and in the event of breach, for whatever reason and at whatever time, the tuition fee remains payable in full”;

Given that in granting the school’s claim the judgment under attack held that M. Capdemourlin had bound himself irrevocably and could not maintain that the clause in issue was a clause pénale;

Given that in so deciding when the term that the tuition fee remained payable in full constitutes, when correctly analysed, an agreed evaluation of the damages payable in the event that the debtor is in breach of his obligation to perform, the court of appeal violated the text cited above;

For these reasons QUASHES the decision of the Court of Appeal of Bordeaux rendered on 18 June 1993, and remands the case to the Court of Appeal of Agen.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2005.

Civ 1, 10 November 1995, Bull no 347 : Commenting on this judgment, Philippe Delebecque (Dalloz, 1996, somm, Commentes, p 116) regretted that the Cour de cassation had not been seised of another question, concerning not the designation of the contentious clause but its abusive character. The solution would be provided by a judgment of the 10 February 1998 (Bull, 1, no 53), by which the Cour de cassation approves a decision in which a court of appeal judged to be abusive a clause in a contract concluded with a training institution providing for the payment of the whole of the price, whatever the reason for the cancellation of the contract. Such a clause obtained for the college "an excessive advantage, by imposing on the student payment of education fees even in the case of a non-performance of the contract which was attributable to the institution, or caused by pure accident (cas fortuit), or force majeure". The solution put forward by the judgment of 1995 - given in similar circumstances - should not, for all that, be considered obsolete, inasmuch as it only asserted the penal character of such clauses, thus permitting judges of the lower courts to make use of the moderating power which article 1152 of the Code civil confers upon them.

Translation by Raymond Youngs

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