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

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

On this occasion, the range of forms of contractual self-defense was enriched by a new form of exception of non-performance.

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

The new article 1120 of the Civil Code , in a logic that is even more protective of the creditor, allows a party to " suspend the performance of its obligation when it is clear that its co-contractor will not perform on the due date and that the consequences of this non-performance are sufficiently serious for it ".

Such a power seems at first glance very attractive to a creditor.

It is indeed likely to prevent him from performing his obligations in vain, since in consideration of the non-performance of his obligations by his debtor being able to be anticipated, it would allow him to dispense with them.

Such a mechanism clearly has limitations, which must be properly understood.

The exercise by a creditor of this right conferred upon him is in fact subject to the manifest nature of the impossibility in which his debtor would find himself to perform, in the future.

This is a factual circumstance, the proof of which will fall on the creditor and the characterization of which may be difficult when the creditor invokes the exception of non-performance, insofar as it is an event intended to take place in the future, which by its very nature may not occur, thus thwarting the creditor's anticipation.

Prudence would therefore seem to dictate that a creditor should only exercise such a right if the non-performance by his debtor of his obligations at their due date is certain and could be easily proven.

Because, as it is a right offered to the creditor, it will 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 of the means offered to a creditor in the event of a breach by his co-contractor, such as the right to request specific performance of the disregarded obligations or the awarding of damages in compensation for the harmful consequences of the non-performance.

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

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

While it would appear that a creditor would still be unable to rely on prior non-performance of obligations to prevent the continuation of the contract in the event of insolvency proceedings against its debtor, would Article 1161 allow it to rely on future non-performance of the contract to suspend the performance of its own obligations?
While nothing would seem to preclude this, the initial case law on the subject should usefully confirm it.

In any event, in the context of a collective procedure, the issues related to the suspension by the creditor of the performance of its obligations would require even more caution in the implementation of the option offered, in view of what its consequences could be for the debtor if it were wrongful.