Case:
DP 1891.1. 329 Case Ceccaldi.v. Albertini
Date:
14 April 1891
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Cour de cassation

The Court:

In view of article 1184 Code civil:

Given that when a party has failed to perform his contract this article does not distinguish between the possible reasons for his non-performance and does not make force majeure an obstacle to rescission, the reality being that the obligation of each party to a synallagmatic contract is the cause of the other party’s obligation, so that if – for whatever reason - one obligation is not performed, the other is left without a cause;

Given that when the contract contains no express clause for termination and a party has completely failed to perform, it is for the courts to decide, in their appraisal of the terms of the contract and the intention of the parties, how extensive and intense was the obligation he undertook, and, where the non-performance is partial only, whether the degree of non-performance is severe enough in all the circumstances to justify immediate rescission or whether damages may not be a sufficient satisfaction, the court’s power to make such decisions being sovereign and not subject to review;

But given that in dismissing the landlord’s claim for rescission of the planting lease of 20 October 1877 the judgment under attack based itself exclusively on the view that the resolutory condition which article 1184 proclaims to be implicit in every synallagmatic contract when one party has failed to perform is inapplicable when the contract has been partially performed or when complete performance has been prevented by force majeure, and proceeded to say that in the present case, where for the first three years of the lease Albertini planted vines as required by the contract and was prevented from planting any more vines by the invasion of phylloxera, a case of force majeure, this view could be applied quite straightforwardly;

But given that in deciding in this way and making its decision turn on a view of the law at odds with the article cited rather than on its sovereign power of interpreting the facts the Court of Appeal violated the article in question;

For these reasons QUASHES the decision below.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2004.

Civ 14 April 1891: when a reciprocal (synallagmatique) contract does not contain any express termination clause, it is for the courts to assess, in case of partial non-performance, if termination ought to be decreed, or if it suffices to allocate damages to the claimant. An action for termination of a contract for failure to perform is admissible whatever the cause which has prevented the other party from fulfilling his commitments, and even though that party finds himself in a situation of force majeure, as article 1184 does not distinguish between the causes of non-performance of agreements and does not accept force majeure as causing a hindrance to termination. Case law maintained.

Cf Civ 1, 2 June 1982, Bull no 205 cited supra: "It follows from article 1184 of the Code civil that termination of a reciprocal contract can be decreed in case of non-performance of his obligations by one of the parties, even if this non-performance was not due to his fault, and whatever the reason was which prevented this party from fulfilling his commitments, even though this prevention resulted from the act of a third party or from force majeure". This solution concerning the admissibility of an action for termination even in case of non-performance through force majeure has been regularly reaffirmed by the Cour de cassation in the course of the 20th century. What remained to be assessed was the effect and seriousness of a possible partial non-performance, and appropriate reparation for it, which was the second problem settled by this judgment, the solution put forward remaining, again, still valid. Cf Com 27 May 1981, Bull no 252, Civ 3, 22 March 1983, Bull no 84 and, more recently, Civ 1, 15 July 1999: "The judges of the lower courts exercise their sovereign powers of appreciation as to whether the seriousness of the breach attributed to a contracting party justifies the termination of the contract".

Translation by Mr Raymond Youngs

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