The exception of non-performance in futurum or contractual self-defense in advance

The reform of contract law has undeniably strengthened the means available to one party to a contract to react to its non-performance by the other, without the intervention of a judge.

On this occasion, the panel of forms of contractual self-defence was enriched with a new form of exception for non-performance.

The rewriting of the Civil Code has in fact not only consecrated, under the terms of the new article 1119, the exception of non-performance as it was traditionally apprehended, namely the possibility for a party to refuse to perform its obligation, when it is due, when the other does not perform its own obligation and this non-performance is sufficiently serious.

The new article 1120 of the Civil Code , in a logic much more protective of the creditor, allows a party to " suspend the execution of its obligation as soon as it is clear that its co-contracting party will not perform at the deadline and that the consequences of this non-performance are serious enough for it ".

Such an option seems at first sight very interesting for a creditor.

It is in fact likely to prevent him from performing his obligations in vain, since in consideration of the non-performance of his obligations by his debtor which can be anticipated, it would authorize him to dispense with them.

Such a mechanism nevertheless clearly has limits, which must be well understood.

The exercise by a creditor of this option conferred on him is in fact subject to the manifest nature of the impossibility in which his debtor would find himself to perform, in the long term.

This is a factual circumstance, the proof of which will be the responsibility of the creditor and the characterization of which may be made difficult, at the time when the creditor makes the exception of non-performance, insofar as it will be an event intended to take place in the future, which in essence is likely not to happen, thwarting the creditor's anticipation.

Prudence would therefore seem to require a creditor to exercise such an option only in the event that the non-performance by his debtor of his obligations on their due date is certain and could be easily proven.

Because, as this is an option offered to the creditor, it will be intended to be exercised by him at his own risk and peril, which will expose him in the event of faulty implementation, to the exercise by the debtor himself the means offered to a creditor in the event of default by his co-contracting party, such as the ability to request the forced execution in kind of unrecognized obligations or the award of damages in compensation for the harmful consequences of non-execution.

The methods of implementation by the creditor of this new form of exception of non-performance must moreover be apprehended in relation to the law of companies in difficulty which specifically tends to ensure the continuation and the execution of the contracts concluded by the debtor making the subject of a procedure of safeguard, reorganization or judicial liquidation.

However, the new article 1161 of the Civil Code appears to constitute a serious means of thwarting such an objective, which raises questions as to its scope with regard to a right which derogates in many respects from the common law of contracts.

If the creditor would seem to continue to be unable to rely, in the event of the opening of collective proceedings against his debtor, of the non-performance prior to this of his obligations to prevent the continuation of the contract, the Article 1161 allow him to avail himself of the non-performance to come of this one to suspend the execution of his own obligations?
If nothing seems to oppose it, the first decisions of jurisprudence on the subject should usefully come to confirm it.

In any case, in the context of collective proceedings, the issues related to the suspension by the creditor of the performance of his obligations would require even more caution in the implementation of the option offered, with regard to this what could be its consequences for the debtor if it is at fault.