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

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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
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
  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.'



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