Retour à la page contenant cette publicationNews January 2018 – The importance of a formal notice before going to Court
« Rien ne sert de courir, il faut partir à point » (« there is no point in running if you do not start on time »). This maxim of Jean de La Fontaine also applies in litigation matters. A particularly strict decision of the Commercial Court of Paris[1] usefully reminds the risks of not sending a proper formal notice before bringing a legal action.
There is no doubt now that the failure to properly implement a conciliation or mediation contractual clause leads to the non-admissibility of a legal action (article 56 of the French Civil Procedural Code). However, the failure to send a prior formal notice before initiating a legal action does not normally result, except for some cases, in the non-admissibility of judicial claims.
This decision of the Commercial Court of Paris suggests though the opposite and considers as inadmissible, pursuant to article 56 (French Civil Procedural Code) and 1146 (French Civil Code)[2], the claim brought to obtain damages for the indemnification of an abrupt termination.
Yet, the revocation of a legal action due to a lack of prior formal notice is normally hardly retained. In principle and except in some cases; “sending a formal notice is not required as an admissibility condition of either the action or claim” (Supreme Court. 2nd civ. 10 November 2011 n°10-23.208).
In the present case and to justify the non-admissibility of the legal claim, the Paris court retains that, on the one hand, the claimant has acknowledged himself, in his submissions, that « pursuant to article 1146 of the French civil code (former version) (…), the required damages are only admissible subject to a prior formal notice » (opinion that could have been fought and reversed in the first place) and, on the other hand, the claimant’s letter to his partner was not a proper formal notice in the meaning of article 1146 of the Civil code since « none of the terms of such letter is to be regarded as a formal notice (…) requiring the compliance with contractual obligations on which the claimant grounds his claims or the payment of damages for breaching abruptly the contract ».
Considering therefore that the conditions required to obtain damages as per article 1146 (former version) are not met, « the Commercial court considers that the claim shall be regarded as non-admissible » and the claimant is sentenced to pay the defendant 5,000 euros as damages pursuant to article 700 of the Civil code.
Even though such a decision could be overruled by the Court of appeal, it is still worthy to be noted as it highlights the importance of sending a prior formal notice, which terms shall not be ambiguous in order to avoid the risk of having one’s claims, that could be well grounded on the merits, regarded as non-admissible in the first place.
By Sarah Temple-Boyer
Attorney at law
[1] Commercial Court of Paris, 4th chamber, 7 September 2017
[2] Article 1146 of the French civil code (former version) : « damages are only due when the debtor is summoned to perform an obligation, except however when the thing that the debtor had previously committed to give or do could only be given/done within a specific period that the debtor did not comply with. The formal notice can result from a simple letter, should it be regarded as a sufficient warning ».