made it an implied condition subsequent in every bilateral contract that each party satisfy his obligation to the other. The provision is unchanged in the Code Civil at the present day. 25 It is true the right of retention gives a technically different remedy and one which might possibly be more desirable in a particular case.26 But practically the remedy of specific performance or that of rescission with damages seems to have been found sufficient. As a general rule these remedies afford more effective redress for the injured party than those of the Roman or of the English law. He may have the contract dissolved with the result that he no longer is bound to perform, or, if he has already performed, that he gets back what he has given, in either case with damages, or he may have the other party compelled to perform, if that is possible.27 The right to have the contract dissolved, like the right of retention, applies to all bilateral contracts, though not absolutely without exception.28 25 Art. 1184. La condition résolutoire est toujours sous-entendue dans les contrats synallagmatiques, pour le cas où l'une des deux parties ne satisfera point à son engagement. Dans ce cas, le contrat n'est point résolu de plein droit. La partie envers laquelle l'engagement n'a point été exécuté, a le choix ou de forcer l'autre â l'exécution de la convention lorsqu'elle est possible, ou d'en demander la résolution avec dommages et intérêts. La résolution doit être demandée en justice, et il peut être accordé au défendeur un délai selon les circonstances. In this connection too should be noted: Art. 1610. Si le vendeur manque a faire la délivrance dans le temps convenu entre les parties, l'acquereur pourra, â son choix, demander la résolution de la vente, ou sa mise en possession, si le retard ne vient que du fait du vendeur. Art. 1654. Si l'acheteur ne paie pas le prix, le vendeur peut demander la résolution de la vente. And there are analogous provisions in regard to exchanges in Arts. 1704, 1705. 26 For instance, if one party after partly performing makes default, the most profitable course open to the other party may be simply to do nothing. Dissolution under Art. 1184 involves return of whatever has been received. The negative right of retention does not. 27 In France, as well as in Germany, the right to specific performance of obligations is limited only by actual impossibilities. There are not technical difficulties in addition, as in English law. Infra, § 954. 28 In sales of movable property, if the buyer becomes bankrupt after acquiring possession of and before paying for the goods, the seller cannot have the sale dissolved and thereby regain the goods. Cour de Cassation, 13 Mar. 1888, Journal du Palais, 1890, 1, 393. This doctrine applies to incorporeal movables. Cass. 3 Mar. 1890, Jl. du Pal. 1891, 1, 140. But in general, bankruptcy leaves unchanged Non-performance of one contract may even afford ground for dissolution of another, but only in case the two agreements are related to each other, as, if the making of one was the consideration of the other.29 § 900. Application for dissolution must be made to the court. The provisions of the French law have some peculiarities of detail. In the first place, the dissolution is not effected by the mere non-performance of one party. An application to the court is necessary.30 This may be made by a defendant as a means of defending himself from a suit; 31 but the express provision of the statute is for a direct application by the party claiming dissolution. He would therefore normally be a plaintiff rather than a defendant. Nor is the mere non-performance of the defendant sufficient foundation for a suit for dissolution. The party claiming dissolution must first put him in default by legal summons to perform or by some equivalent act.32 The very nature of some contracts, how the rights given by Art. 1184; one who has made a lease or exchange of property or a sale of immovable property may have the transaction dissolved for non-performance by the other party due to bankruptcy, even after transfer of possession and title. See note to case last cited. In case of bankruptcy before delivery of the goods, the syndic may take them on paying the contract price. If he refuses to do this, the seller may have the contract dissolved. Whether he is also entitled to a claim for damages, provable against the bankrupt's estate, has been somewhat disputed. In Belgium this right is allowed. Cass. Belgique, 7 Feb. 1889; Jl. du Pal. 1890, 2, 1, and a similar decision is Paris, 4 Mar. 1886, Jl. du Pal. 1887, 1, 194. But the rule in the French Cour de Cassation is otherwise, Cass. 16 Feb. 1887, Jl. du Pal. 1887, 1, 353 (reversing the decision of the Cour de Paris just cited); Cass. 8, Apr. 1895, Jl. du Pal. 1895, 1, 268. This general question is elaborately considered, including references to the legislation of other countries in Des Droits du Vendeur â livrer dans la Faillite de l'Acheteur, by C. Appleton (Paris, 1887). There are some minor exceptions also to the general rule of Art. 1184, Larombière, III. 108; Code Civ. Art. 1978. 29 Larombière, III. 101. 30 Thus a master cannot dismiss summarily a servant or employee whose conduct is unsatisfactory before the expiration of the time fixed by the contract of employment. The master must apply to the court to have the contract dissolved. Cour de Paris, 1 Feb. 1873, Jl. du Pal., 1873, 444. 31 Saleilles, Annales de Droit Comm. VII. 25. 32 Art. 1139. Le débiteur est constitué en demeure, soit par une sommation ou par autre acte équivalent, soit par l'effet de la convention, lorsqu'elle porte que, sans qu'il soit besoin d'acte et par la seule éch ever, is such that mere non-performance necessarily involves default. If performance to be effectual must be before a certain day or fixed time, for instance if the contract was for furnishing provisions to a ship which was to sail on a fixed day, the mere lapse of time without performance puts the debtor in default.33 The same result follows if performance is promised at the creditor's domicile or some specified place other than the debtor's domicile, and at the time when the debtor should perform he is not at the agreed place prepared to do so.34 Again, if the debtor by his words or conduct has given the creditor cause to believe performance would not be made, this will serve instead of a formal putting in default. The debtor cannot take the objection that his adversary has not done what his own conduct had authorized him not to do.35 § 901. Discretion of the court in granting dissolution. Finally, it may be expressly stipulated in the contract that in case of non-performance there shall be dissolution de plein droit.36 The effect of this provision is more than to make it ance du terme, le débiteur sera en demeure. In commercial matters a letter or telegram has been held to serve to put a party in default. Rouen, 23 Dec. 1880, Jl. du Pal. 1882, 1095; Paris, 6 Nov. 1874, Jl. du Pal. 1877, 1026, and note; but the contrary was held in Paris, 1 Dec. 1874, Jl. du Pal. 1877, 1026. See also Can, 13 March, 1876, Jl. du Pal. 1877, 1027. It must be subsequent to the expiration of the time fixed by the contract for performance, and must be a demand for performance and not look primarily to a dissolution of the contract. Rouen, 23 Dec. 1880, Jl. du Pal. 1882, 1095. 33 Larombière, III. 149. Similarly where the performance of a contract necessarily requires time, as to cut standing timber, failure to begin the work until it has become impossible to complete it in a reasonable time makes formal putting in default unnecessary. Cass. 17 Feb. 1869, Jl. du Pal. 1863, 386. See also Rennes, 10 Dec. 1875, 34 Larombière, III. 150. 36 This clause is legal, but it must be expressly stated. If the contract provides merely that there shall be dissolution for non-performance this is taken to be but an expression of what the law implies. Larombière, III. 152. In regard to immovable property, further, by Art. 1656 of the Code Civil, even though it is stipulated in the contract that there shall be dissolution de plein droit it is still necessary to put the delinquent formally in default, unless it is also stipulated that dissolution shall be "sans sommation ou mise en demeure." In contracts relating to unnecessary to put the debtor in default, though that effect it has. It deprives the court of any discretion in decreeing dissolution or granting the defendant delay. The only question the court can consider is whether the contract has been broken.37 Except in the case of contracts which are expressly made subject to dissolution de plein droit, the plaintiff has no absolute right to have the contract dissolved. If the failure to perform is merely delay, and the contract still admits of substantial performance, 38 the defendant, if he sees fit, may perform, pending the action, at any time before judgment of dissolution is pronounced. Indeed, by taking an appeal, he may perform after that time, that is, until judgment on appeal.39 By the movable property the better view is that these last words are unnecessary: Cass. 29 Nov. 1886, Jl. du Pal. 1887, 1, 137 and note. The contracting parties may also agree that the contract shall not be dissolved for non-performance, or only for non-performance of a certain kind. Larombière, III. 113. 37 Larombière, III. 155; Aubry-Rau, Cours de Droit Civil Français (4th ed.), IV. § 302, b; Cass. 2 July, 1860, Jl. du Pal. 1860, 1101. But it does not make application to the court unnecessary to secure dissolution, Aubry-Rau, IV. §302, b; Larombière, III. 149, though this view was maintained by the older writers. See authorities cited above Besides the case where it is part of the contract that the dissolution shall take place de plein droit, in sales of chattel property the seller has, by a particular provision of the Code (Art. 1657), an absolute right to have the contract dissolved without delay. This provision is only in favor of the seller. A buyer has not a corresponding right in case of the seller's default. In such sales, if goods ought to be taken by the buyer in instalments, failure to take one instalment gives rise to a right to have the whole contract dis solved, as it is held to be indivisible for this purpose. Larombière, III. 147, 148. 38 In Cass. 13 Feb. 1872, Jl. du Pal. 1872, 133, there was involved a contract for the manufacture of cloth. The manufacturer was prevented by war from furnishing the goods at the stipulated time. The buyer sued for dissolution of the contract with damages while the manufacturer claimed to be wholly released from the contract by impossibility. It was held that the parties not having made it appear that the time was essential, it could be performed after the interruption caused by the war had ceased, and specific performance was ordered. 39 Larombière, III. 144; Demolombe, Traité des Contrats, II., §§ 515 et seq. In Holland, however, it is held that by putting a delinquent party to a contract formally in default, the other party acquires a right to have the contract dissolved, which cannot be destroyed by subsequent performance. See a decision of the High Court of the Netherlands, 14 Dec. 1893, Jl. du Pal. 1894, 4, 29. So in Louisiana it is held that after a party has been put in mora by written demand followed by the filing of a suit to rescind, an offer of performance express provision too of the article of the code under consideration (1184), the court may grant such delay as it sees fit, within which the defendant may perform.40 This may be done by delaying to give judgment, or judgment may be given with a proviso that it shall not take effect for a certain time, or subject to the condition that the defendant fail to perform within a certain time.41 But one delay is allowable, however. The court cannot extend the period originally granted.42 § 902. Delayed or imperfect performance. The nature of some contracts is such that, though there is no express provision for the case in the Code Civil, delayed performance or offer of it need not be accepted and will not always avert the dissolution of the contract. If the contract relates to a mercantile matter, 43 especially if it is for the purchase and sale of commodities which fluctuate in price from day to day, or if for any reason the exact time specified in the contract is of importance, a stricter rule prevails. In such cases the normal and proper course to be taken by a party to a contract who wishes to avoid it because of the failure of his co-contractor to perform at the time specified in the contract, is immediately to make formal demand for performance, and, not receiving it, to give notice that if performance is not rendered within a stated short time, the dissolution of the contract will be claimed. The time thus fixed is not necessarily conclusive; the court may grant such delay as seems to it proper under the circumstances, 45 and although no time is fixed in the formal demand for performance, subsequent offers to perform not made within a time reasonable under all the circumstances of the case may be refused and dissolution of the contract insisted upon. 46 Nevertheless comes too late. Clover v. Gottlieb, 50 La. Ann. 568, 23 So. 459. There is a special provision to the same effect in regard to sales of immovable property, contained in Art. 1655 of the Code Civil. "Larombière, III. 145, 146. 42 Ibid. 43 Paris, 12 Aug. 1870, Jl. du Pal. 1872, 756. 44 Paris, 30 Jan. 1873, summarized in Sirey & Gilbert's annotated Code Civil, 33 of note to Arts. 16091611. 45 Bordeaux, 8 Aug. 1829, summarized in ¶ 17 of the note above referred to; Cass. 15 Apr. 1845, Jl. du Pal. 1845, 1, 591. 46 Paris, 12 Aug. 1870, Jl. du Pal. 1872, 756. |