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13 Const. L. Int'l 53 (2018-2019)
The Legal Consequences of a Wrongful Termination

handle is hein.journals/cnstrcnl13 and id is 285 raw text is: The leg a osqecso wr~~~ nf lrA tio Virginie Colaiuta LMS Legal, London The reform of the French Civil Code, which entered into force on 1 October 2016, introduced a new Article 1224, which provides that: Termination results eitherfrom the application of a termination clause, or where the non-ferformance is sufficiently serious, from notice by the creditor to the debtor or from a judicial decision. As a result, a contract can be terminated: * on the basis of a termination clause with a unilateral notice referring to the clause unless the parties have agreed otherwise; or * without a termination clause, but in the event of a very serious breach, through court decision or with unilateral notice from the creditor. As per Article 1226: 'A creditor may, at his own risk, terminate the contract by notice. Unless there is urgency, he must previously have put the debtor in default on notice to perform his undertaking within a reasonable time. The notice to perform must state expressly that if the debtor fails to fulfil his obligation, the creditor will have a ight to terminate the contract. Where the non-performance persists, the creditor notifies the debtor of the termination of the contract and the reasons on which it is based. The debtor may at any time bring proceedings to challenge such a termination. The creditor must then establish the seriousness of the non-performance.' The defaulting party can challenge the termination notice and commence legal proceedings against the terminating party in order to obtain an order from the court to compel performance. In fact, as per Article 1228: 'A court may, according to the circumstances, recognise or declare the termination of the contract or order its performance with the possibility of allowing the debtorfurther time to do so, or award only damages.' If termination is without good cause or done abruptly, the terminated party may argue that termination violated the principle of good faith. If termination does not occur within any of the aforementioned options and there are no exceptions that apply, the termination would itself amount to a breach of the contract. The wrongfully terminated party would thus have the remedies available to a non-defaulting party. The remedies available to a non-defaulting party are defined in Article 1217 of the French Civil Code whereby: 'A party towards whom an undertaking has not been performed or has been performed imperfectly, may: * refuse to perform or suspend performance of his own obligations; * seek enforced performance in kind of the undertaking; * request a reduction in price; * provoke the termination of the contract; * claim reparation of the consequences of non-performance. Sanctions which are not incompatible may be combined; damages may always be added to any of the others.' As per Article 1223 of the French Civil Code: 'Having given notice to perform, a creditor may accept an imperfect contractualperformance and reduce the price proportionally. If he has not yet paid, the creditor must give notice ofhis decision to reduce the price as quickly as possible.' CONSTRUCTION LAW INTERNATIONAL Volume 13 Issue 4 January 2019 53

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