Breach of contract: what you can do

What counts as a breach of contract

A breach of contract happens when one party fails to do what the contract requires, without a valid legal excuse. In French law, a validly formed contract binds the parties like a private law between them, so a failure to perform gives the other side rights to react. The breach can be total, when nothing at all is delivered, or partial, when only part of the obligation is met. It can also concern quality (goods or services that do not match what was agreed) or timing (a delivery or payment that arrives late).

Not every disappointment is a legal breach. If the contract genuinely allowed for what happened, or if performance became impossible because of an event outside anyone's control (force majeure), the other party may be excused. To assess a situation, you need to identify the precise obligation that was promised, compare it to what actually happened, and check whether any clause or legal exception explains the gap. A useful test is to ask: what exactly did I have the right to expect, and in what way did reality fall short? Keeping this concrete helps you avoid disputes over vague grievances and focus on measurable failures.

Common types of breach and how to recognise them

Breaches come in recognisable shapes. Non-delivery or non-payment is the clearest: the money never arrives, or the goods never come. Late performance is common in construction, supply and service contracts, where the promised date slips. Defective or non-conforming performance covers work done badly, products that do not match the sample, or services missing key features. Finally, there is anticipatory breach, where the other party announces or clearly signals that they will not perform before the deadline even arrives.

Recognising the type matters because it shapes your remedies. If a supplier tells you outright they cannot deliver next month, you may not need to wait for the deadline to react. If a contractor's work is defective but fixable, forcing repair may make more sense than tearing up the whole contract. For a small business owner, a practical habit is to log the first sign of trouble: a missed instalment, a quality complaint, a delivery that is a week late. Early patterns often reveal whether you are facing a one-off hiccup or a party who will not honour the deal at all.

First steps: document the problem and check your contract

Before taking any formal action, gather evidence and re-read the contract. Your goal is to build a clear, dated record of what was promised and what went wrong. Keep the signed contract, quotes, purchase orders, delivery notes, invoices, emails and messages. If a product is defective, photograph it. If a service was incomplete, note precisely what is missing and when you noticed it.

Then check the contract itself. Look for clauses on deadlines, payment terms, penalties for late performance, conditions for termination, and how notices must be sent. Some contracts require you to give the other party a chance to fix the problem within a set period. Others contain a resolutory clause that lets you cancel automatically if a specific failure occurs. Understanding these terms tells you what leverage you already have. For everyday transactions with no written contract, an exchange of emails, an order confirmation or a quote can still prove what was agreed. Organise everything chronologically so that, if the dispute escalates, you can show a coherent story rather than a pile of scattered documents.

Formal notice (mise en demeure): how and when to send it

The mise en demeure is a formal written demand asking the other party to perform their obligation. In many situations French law requires it before you can claim damages, terminate the contract, or start charging interest for delay. It signals that you are moving from informal complaint to a serious, documented stage.

A good mise en demeure identifies the parties, refers to the contract, describes exactly what obligation has not been met, and states clearly what you expect and by when. Give a reasonable deadline for the other side to comply. Send it by registered post with acknowledgement of receipt (lettre recommandée avec accusé de réception) so you can prove it was sent and received; keep a copy of the letter and the postal receipt.

Why it matters practically: the mise en demeure often unblocks a stalled situation without any further conflict, because it makes the consequences tangible. It also protects you. If you later go to court, judges will want to see that you gave the other party a fair chance to put things right. Sending a calm, precise letter is usually the single most effective step an individual or small business can take.

Your practical options: performance, price reduction or termination

When a party breaches, French contract law offers a menu of responses, and you can choose the one that fits your real needs. First, you may demand forced performance: insist that the party actually does what was promised, where that remains possible and not disproportionately costly. This suits cases where you still want the goods or service.

Second, you may reduce the price. If performance was incomplete or defective but you decide to keep it, you can accept a proportionate reduction reflecting what you actually received. This is useful when the work is partly usable and a full cancellation would harm you more than the other party.

Third, you may terminate the contract (résolution). This ends the parties' obligations and, where relevant, unwinds what was exchanged. Termination can happen by applying a resolutory clause in the contract, by a formal notice after an unremedied breach, or through a court decision. Termination is powerful but has consequences, so weigh whether you would be better off keeping a corrected version of the deal.

A fourth self-help tool is the exception of non-performance: if the other party has not performed, you may be entitled to withhold your own performance until they do, provided the failure is serious enough. Choosing among these options depends on whether you still want the deal, how serious the breach is, and what evidence you can show.

Claiming damages for losses caused by the breach

You can seek compensation for the harm the breach caused you, separately from or in addition to the options above. Damages aim to place you, as far as money can, in the position you would have been in had the contract been properly performed. This typically covers losses you actually suffered and gains you were reasonably deprived of, provided they were foreseeable when the contract was made.

To claim effectively, you must show the breach, the loss, and the link between them. Quantify concretely: extra costs to get the work redone elsewhere, wasted deposits, lost sales you can document, or storage costs from a late delivery. Vague or speculative figures are hard to defend. Keep invoices and records of any expense caused by the failure.

You also have a duty to act reasonably to limit your own losses; running up avoidable costs can weaken your claim. If the contract contains a penalty clause (clause pénale) fixing a set amount for a given breach, that figure may apply, though a court can adjust it if it is clearly excessive or derisory. For late payment between businesses, interest and a fixed recovery indemnity may be due. In practice, present a clear list of your losses with supporting documents alongside your mise en demeure.

When to seek mediation or go to court

Not every dispute needs a courtroom. Mediation and conciliation let both sides negotiate a solution with a neutral third party, often faster and cheaper than litigation, and they help preserve a commercial relationship you may want to keep. For many everyday consumer disputes, contacting an approved mediator is a normal and expected step. For smaller sums, a conciliateur de justice can help reach a free, amicable settlement. In fact, for many civil claims of modest value, attempting an amicable resolution before filing is required.

If negotiation fails, court remains available. The right court depends on the amount and nature of the claim, and for business-to-business contracts a commercial court is often competent. Court can order performance, termination, damages, or a combination. Be realistic about time, cost and evidence: a well-documented file, a proper mise en demeure and clear proof of loss make any claim far stronger.

Because deadlines (prescription) limit how long you have to act, do not let a dispute drift indefinitely. If the sums involved are significant or the situation is complex, it is worth taking advice from a qualified professional before choosing between an amicable route and litigation.

Frequently asked questions about breach of contract

The questions below address the practical points people most often raise when a contract goes wrong. They are general explanations, not legal advice for your specific situation.

Example

Common breach situations and typical responses

FAQ

Do I always need to send a mise en demeure first? Often yes. For claiming damages, charging late interest or terminating for non-performance, French law usually expects a prior formal notice giving the other party a chance to comply. Exceptions exist, for example where performance has become clearly impossible or the contract's resolutory clause says otherwise. When in doubt, sending a clear registered letter is a safe and useful step.

Can I stop paying if the other party has not done their part? You may be able to withhold your own performance through the exception of non-performance, provided the other side's failure is serious enough to justify it. This is a defensive tool, not a licence to stop paying over a minor complaint. Document the failure clearly, and be cautious: withholding payment without a solid basis can put you in breach instead.

How much time do I have to act after a breach? Legal time limits (prescription) restrict how long you can bring a claim, and they vary by the type of contract and parties involved. Delay can weaken or bar your rights, so it is best to react promptly, document the problem, and seek advice quickly if the amount or complexity is significant rather than letting the matter drift.

What is the difference between terminating the contract and claiming damages? Termination ends the contract and, where relevant, unwinds what was exchanged, releasing both parties from future obligations. Damages are money to compensate the loss the breach caused you. They are not mutually exclusive: you can often terminate and still claim damages for the harm suffered, provided you can prove the loss and its link to the breach.

Is mediation worth trying before going to court? Usually yes. Mediation or conciliation is often faster, cheaper and less adversarial than litigation, and it can preserve a business relationship. For many smaller civil disputes, an attempt at amicable resolution is even expected before filing. If it fails, you still keep the option of going to court with a well-documented file.

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