|13.01.1965||Court of Cassation, Commercial and Financial Chamber. Case No.41. Application for Review No 62-11.872.
Case Augier / Manufacture Générale de Munitions et Autre
|This case addresses the necessity to serve notice to perform ("mise en demeure") upon a non-performing party to a contract, even, in the circumstances of this case, when an action is started for the judicial termination of the contract. In so doing it modifies pre-existing case law on the relationship between Articles 1146 and 1184 of the Civil Code. The former deals with the necessity to serve notice to perform, and the latter with the judicial termination of a contract. Previous case law, particularly Civ., 19.10. 1931, had held that if a party brings an action for judicial termination of a contract pursuant to Article 1184, the writ counts as the notice to perform required by Article 1146. The facts were that the purchaser of a batch of diaries stipulated delivery for a precise date, tried to cancel his order later in the day, and, faced with an intransigent seller, did not adopt a clear position. The diaries were delivered late. The purchaser sued for judicial termination of the contract, and the Court of Appeal held that the purchaser should have served notice to perform under Article 1146 before commencing his action under Article 1184. The Court of Cassation held that the Court of Appeal could not be criticised for so finding.|