Your supplier, customer, or even partner, does not honor your contract and does not fulfill its obligations in this respect, which necessarily puts you in difficulty.
D’abord, votre premier réflexe doit être de suspendre votre propre exécution du contrat (1). Ensuite, vous devez choisir entre résilier le contrat ou en demander l’exécution forcée (2). Enfin, vous avez toujours la possibilité de demander la réparation de votre préjudice ainsi subi (3).
- The exception of non-performance
The non-performance exception provided by law gives you the right to refuse to perform your obligation until the other party performs its own, provided that the latter is due.
The non-performance exception applies not only in the event of total non-performance of the debtor's obligations, but also in the event of partial or defective non-performance.
However, the exception exception can only be invoked when the non-performance of your co-contracting party is sufficiently serious. This condition of seriousness must be assessed in a relative way: if the obligation not performed by your co-contracting party is essential, you can suspend your obligation. If the obligation not performed by your co-contracting party is only secondary, you cannot suspend yours if it can be considered essential.
Finally, you must always refer to your contract, which may indicate, for example, which situations may or may not allow you to suspend the performance of your obligations.
- Termination of the contract or performance forced
It is possible for you to resolve the contract in several ways, when your co-contractor does not perform after unsuccessful formal notice :
- Implement the termination clause if it exists in your contract : The termination clause specifies the commitments whose non-performance will lead to the termination of the contract. To resolve the contract, all you have to do is have your co-contracting party note this resolution in writing, citing the clause in question.
- Notify the termination of the contract to your co-contractor and the reasons for it : This solution presents risks since the non-performance must be sufficiently serious, and, if the judge considers a posteriori that this was not the case, you could be sentenced to damages.
- Request the termination of the contract by justice.
But it is also possible for you, always after formal notice from your co-contractor, to :
- Request the forced execution in kind of the contract from the judge ;
- Have the obligation performed by another service provider within a reasonable time and at a reasonable cost and ask the judge to advance or reimburse the sums by your debtor ;
- Destroy what has been performed by your co-contractor in violation of its obligations, with the authorization of the judge, and request the advance or refund of the sums by your debtor.
Our team is at your disposal to assist you in this process (contact@annabelbenhaim.com)
- Commitment to the contractual liability of your co-contractor
You can ask in court that the damage suffered as a result of the non-performance or the delay in the performance of your co-contractor be repaired by the allocation of damages.
The damages that could be due to you are, in general, the loss that you will have made and the gain of which you will have been deprived. But your contract may provide that the party who fails to perform it will pay a lump sum as damages: in this case, you cannot be awarded a greater or lesser sum, except by decision of the judge.
Our teams are available to answer your questions and support you in this situation (contact@annabelbenhaim.com).
