Article 1799-1: a payment guarantee even after work is completed?

Imagine: you are a property owner in Frontignan, you entrusted the renovation of your roof to a tradesman. The work is finished, but a disagreement arises over quality or price. You suspend payment. The contractor, meanwhile, finds himself with unpaid bills and employees to pay. What can he do? Can he still claim a payment guarantee after the fact?

This question, crucial though it is, divides the courts. Many think that the guarantee provided for by Article 1799-1 of the Civil Code (which obliges the project owner to provide a bond or guarantee for sums due) must be requested before the work. But the Court of Cassation, in a judgment of 15 September 2016, ruled: the contractor may request it even after the completion of the work, if he has not been paid.

A decision that changes the game, both for tradesmen and for property owners. Let's decipher together what it means in practice.

The facts: a story like many that happen every day

A sole-person company, whose registered office is in Lyon, carries out renovation work for a project owner. The site finishes, but the invoice remains unpaid. The contractor then turns to the company ADP Courtage Plus, requesting the implementation of the guarantee provided for in Article 1799-1 of the Civil Code.

The Lyon Court of Appeal, in a judgment of 7 April 2015, refused to grant his request. For the judges in Lyon, the contractor should have demanded the guarantee before the start of the work or, at the very least, before its completion. Afterwards, it is too late, they considered.

The contractor did not give up. He appealed to the Court of Cassation. And the Court of Cassation ruled in his favour. In its judgment No. 15-19.648, it quashed the appeal judgment and referred the case back to a differently composed bench of the Lyon Court of Appeal. The message is clear: the text sets no time limit for requesting the guarantee.

The reasoning of the court — dissected

The Court of Cassation relies on Article 1799-1 of the Civil Code. This text, little known to the general public, provides that the project owner (the client) must, at the contractor's request, provide him with a payment guarantee for the sums due. This guarantee may be a bank bond, an insurance or another security (payment security).

The question was: can the contractor request this guarantee after the end of the work? The Court answers yes, because the article does not provide for any time condition. In other words, the right to a guarantee arises from the failure to pay, not from the progress of the site.

Beware, however: the guarantee only covers sums due under the contract. If the project owner disputes the amount, the contractor must first obtain a court decision establishing his debt. The guarantee is not a blank cheque, but a safety net.

What few people know is that this solution is not isolated. The Court of Cassation has already held, in other cases, that the guarantee may be requested during the work or after the acceptance of the work. Here, it confirms and generalises the principle.

undefined, I have come across files where contractors, discouraged by a refusal to pay, thought they had lost all recourse. This decision gives them an additional weapon.

What this changes for you — in practice

For the contractor: you can demand a payment guarantee even if the work is finished. If your client refuses, you can apply to the interim relief judge (urgent procedure) to obtain the delivery of the guarantee. Example: you carried out a house extension in Montpellier for €50,000. The owner does not pay. You ask him for a bank bond. If he refuses, you can sue him.

For the owner (project owner): beware, you may be compelled to provide a guarantee even after the end of the site. This means that you cannot hide behind the end of the work to escape your obligations. In practice, plan for staggered payments or a retention guarantee (sum blocked until the lifting of reservations) to protect yourself in case of defects.

For the tenant or co-owner: these rules do not directly concern you, but if your landlord or management company is in dispute with a contractor, this may delay work. Be vigilant.

But what exactly changes? Before, some contractors gave up claiming the guarantee after the work, thinking it was too late. Now, they can act, which strengthens their cash flow. In return, property owners must be more careful in managing their payments.

Four tips to avoid this type of dispute

• For the owner: Draft a written contract detailing the payment terms and conditions of the guarantee. Clearly state that the guarantee can only be demanded in case of unjustified non-payment. This will avoid an unpleasant surprise.
• For the contractor: As soon as the contract is signed, request in writing the provision of a payment guarantee. Keep a record of your request. If the owner refuses, apply to the judge before the end of the work to be more at ease.
• For both parties: Provide for a payment schedule linked to the progress of the work. For example, 30% on order, 30% mid-site, 30% on acceptance, 10% on lifting of reservations. This limits the risk of massive non-payment.
• In case of dispute: Consult a lawyer specialised in property law before starting proceedings. A simple formal notice (registered letter with acknowledgement of receipt) may be enough to unlock the situation. The cost of a lawyer is often less than the amount in dispute.

Further: related case law and developments

This decision is part of a trend favourable to contractors. The Court of Cassation has already held, in a judgment of 10 July 2013 (No. 12-21.043), that the guarantee under Article 1799-1 can be requested during the site, even if the contract does not provide for it. Here, it goes further by allowing it after completion.

On the other hand, be careful not to confuse it with the guarantee of perfect completion (which covers defects for one year) or the decennial liability (which covers serious damage for ten years). Article 1799-1 is a payment guarantee, not a quality guarantee.

The lower courts, such as the Montpellier Court of Appeal, now apply this solution. If you are in the jurisdiction of Montpellier, know that the judges follow the position of the Court of Cassation. How to react? In case of refusal to pay, do not hesitate to request the guarantee, even late.

Checklist before acting

FAQ: questions I am often asked

• Can I request the guarantee after signing the acceptance certificate? Yes, the Court of Cassation allows it, provided that the debt is certain, liquid and due (i.e., undisputed in its principle and amount).
• What if the project owner is a co-ownership? The guarantee must be requested from the management company, which represents the co-owners' association. Beware, time limits may be longer.
• What is the cost of proceedings to obtain the guarantee? In interim relief, expect about €1,500 to €3,000 in lawyer's fees, plus court costs. But if you win, these costs may be borne by the other party.
• Can I refuse to provide the guarantee if the work is badly done? Yes, but you must prove it. It is advisable to have the defects noted by a court expert (lawyer appointed by the court) before refusing.
• Does the guarantee apply to routine maintenance work? Yes, Article 1799-1 applies to any contract for services (contract for work), including small jobs. But in practice, it is only requested for significant amounts.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →