The Court:

Given that the decision under attack (Riom, 10 December 1956, D. 1956, 101) is criticised for fixing in relation to the debtor’s culpable recalcitrance rather than the harm caused to the creditor by the delay in performance the amount payable under an astreinte previously granted in order to enforce the execution of an obligation to perform a service, whereas, according to the applicant, in fixing the amount of an astreinte the judge must determine the amount of harm caused and may not order the payment of any higher sum;

But given that in deciding that the provisional astreinte, a remedy quite distinct from that of damages and really only a means of overcoming refusal to obey a judicial order, is not designed to compensate for damage caused by the delay but is normally fixed in relation to the seriousness of the debtor’s fault and the extent of his means, the decision of the Court of Appeal is properly reasoned and justified.

For these reasons DISMISSES the application for review.

Subsequent Developments

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

Civ 20 October 1959: "A judgment is legally justified in deciding that a provisional astreinte, which is a measure of compulsion completely distinct from damages, and which is after all only a means of overcoming resistance to performance of a judicial order, does not have the object of compensating for harm resulting from delay and is normally fixed in terms of the seriousness of the debtor's fault and the extent of his means. A ground of appeal which argues that in fixing this sum the judge is bound not to exceed the amount of the harm caused to the creditor by delay in performance must therefore be rejected." Solution maintained.

Cf Francois Chabas, Juriclasseur civil: Two types of astreinte existed until 1972. The first, called provisional, was subject to revision at any moment by the judge. When the situation which justified it reached an end, the judge fixed it in terms of the debtor's behaviour, but also of the difficulties experienced by him in performance of the astreinte. The second, called final, pronounced once and for all by the judge, fixed, without any possibility of later variation, the figure for the judicial order by the period of the delay. These two types of astreinte have been merged into one with the law of the 5 July 1972. The law of the 9 July 1991 reforming the civil procedures for execution has preserved the essence of this reform: unity and autonomy (in relation to damages) of the astreinte, provisional and final; and has provided (art 34 para 3) that "a final astreinte can only be ordered after the pronouncement of a provisional astreinte, and for a period which the judge determines". In order to fix the provisional astreinte, the judge must take account of the rate for the judicial order, of the amount of the sum fixed in terms of the resistance expected - and then established - from the debtor, but also the extent of his means. For the stage of fixing the sum, case law had emphasised that an astreinte is "normally fixed in terms of the seriousness of the debtor's fault and the extent of his means" (Civ 1, 20 October 1959, 12 July 1960: Bull no 389, 30 November 1960: Bull no 522). By this ground in its judgment, the Cour de cassation imposed nothing on the judges of the lower courts. This reference to these suggested norms for fixing the sum allow it to demonstrate the distinctness of its change by comparison with its former case law, which required correspondence between the fixed astreinte and the amount of the harm. This new idea was to be repeated by the law of 1972, which provides that "it is for the judge to moderate or cancel a provisional astreinte, even in the case of established non-performance". Today, art 36, para 1 of the law of 1991 provides that "the amount of the provisional astreinte is fixed taking into account the behaviour of the person to whom the order was addressed and the difficulties which he has experienced in performing it". The case law shows a very large autonomy on the part of the judges of the lower courts in the matter (Civ 2, 20 December 2001, Bull no 140: the judges of the lower courts exercise their sovereign power of appreciation as to whether the mistake referred to by the debtor under an obligation paired with an astreinte is of such a nature as to lead to reduction of this astreinte"; Civ 3, 14 November 1996, Bull no 214: "An appeal court is only using its discretionary power in deciding not to moderate the amount of the astreinte"), as already stated by the terms of the judgment of the 20 October 1959. As to the nature of an astreinte, and the distinction between it and damages, see particularly Civ 2, 11 June and 9 December 1997, Bull no 170 and 307 ("An astreinte is intended to ensure the execution of a judicial decision and is independent of damages").

Translation by Mr Raymond Youngs

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