The regime of penalties for contractual non-performance

TheCourt of Cassation provided details on the application of the rules of the Civil Code governing contractual non-performance. 

In a decision of 18 December 2024, the Court of Cassation specified the regime of penalties for contractual non-performance.  

The dispute in question was between a couple of individuals and a water distribution company.  

The latter, by decision of the prefect of Mayotte, had organized temporary suspensions of access to water at the tap.   

Its co-contractors therefore requested before the competent court the forced execution of the contract, failing which, the provision by the distributor of water, water bottles and water fountains, a price reduction of 90% and finally damages in compensation for their moral damages and anxiety.  

The applicants rejected their applications to the Court of Appeal appealed to the Court of Cassation.  

The appellants complain that the Court of Appeal rejected their request to order the public service delegate to restore the delivery of drinking water from the tap without interruption.  

The Court of Cassation recalls that the enforcement in kind of an obligation cannot be ordered if it is impossible. In this case, the restrictions in the distribution of water had been requested by the prefectural authority, and were therefore imposed on the delegate of the public service. It therefore rejects this argument and upholds this point in the appeal judgment.  

The appellants complain that the Court of Appeal rejected the requests for the provision of water bottles and water fountains.  

The Court of Cassation, again, approves the decision rendered by the Court of Appeal. It recalls that enforcement is distinct from compensation in kind resulting from the prejudice of contractual non-performance. Enforcement may only relate to an obligation provided for in the contract.  

In this case, the provision of water bottles and fountains was requested under enforcement, the Court of Appeal had noted that “the supply of bottled water or fountains is not among the obligations that SMAE has committed to perform in its service regulations“. Indeed, no stipulation of the contract placed the burden of such a delivery on the distributor, so he could not continue the forced execution of this obligation.  

Therefore, only an obligation provided for in the contract may be enforced in kind.  

The appellants also complained that the Court of Appeal had refused their claims for compensation for anxiety damage.  

On this point, the Court of Cassation ruled that “it follows from Articles 1231-1 and 1240 of the Civil Code that anxiety resulting from exposure to a high risk of developing a serious pathology constitutes a compensable damage“. In this case, the Court of Appeal applied its sovereign power to assess the evidence transmitted to it, and considered that this prejudice was not established by the appellants on appeal. It finds that the Court of Appeal did not rely on the uncertainty of the realization of the alleged risk, but on the absence of evidence of exposure to this risk, and validates, on this point too, the decision rendered by the Court of Appeal.  

Finally, the Court of Cassation also ruled for the first time on the question of whether the creditor who has not paid all or part of the price can apply to the judge for a price reduction.  

According to an analysis of the preparatory work and parliamentary debates of the law of 20 April 2018, the Court answers this last question positively. It concludes that the price reduction may, in any event, be requested in court. And that in any event, the harmful consequences of an unjustified refusal to pay the price due may be compensated by the award of damages.