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The Action for Performance and the Action for Rescission or Termination of a Contract

Reference decision: cc • No. 88-19.314 • 1992-01-28 • View the decision →

This decision sheds important light on your property law. Here is what it changes for you.

The situation

The action for performance and the action for rescission or termination of a contract constitute, in two different forms, the exercise of the same right and aim at the same ends; therefore, a Court of Appeal, seised of new submissions seeking the termination of a lease-management contract and the award of damages, rightly orders such termination.

What the law says

This decision confirms the fundamental principles of property law.

Key takeaways

Strictly comply with statutory time limits for appeals
Keep all your supporting documents (title deeds, instruments, correspondence)
Anticipate: preventive advice always costs less than litigation

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📌 Does this apply to your situation? Maître Cécile Zakine, French real estate lawyer, practises throughout France.
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Cas d'usage pratiques

Landlord switches from rent claim to lease termination

A landlord in Lyon lets a commercial premises under a location-gérance (lease-management) contract. The tenant-manager falls behind on rent, accumulating €18,000 in arrears over nine months. The landlord initially files a court claim for payment of the outstanding rent. After several unfulfilled payment promises, the landlord amends the claim to seek termination of the contract and eviction.

Application pratique:

Because an action for performance and an action for rescission or termination are two forms of the same right, the court can grant termination even if the landlord originally demanded only payment. The landlord should keep rigorous records of all missed payments, correspondence demanding payment, and any partial settlements. Amending the claim before the judgment is key: the landlord must formally request termination and present evidence that the breach is serious enough to justify ending the contract (e.g., persistent non-payment). Promptly consult a property lawyer once arrears exceed two months to evaluate whether switching remedies is strategically sound.

First-time buyer rescinds purchase after seller's repeated delays

A first-time buyer in Bordeaux agrees to purchase a flat for €285,000, paying a €28,500 deposit. The seller repeatedly postpones the completion date, initially by two months, then a further three months, citing unresolved title issues. The buyer initially seeks specific performance—demanding the sale be completed at the agreed date. After six months without progress and incurring €4,000 in temporary accommodation costs, the buyer terminates the contract and claims the return of the deposit plus damages.

Application pratique:

The principle that an action for performance and an action for termination are two expressions of the same right means the court can award termination and damages even though the buyer first sought to force the sale. The buyer must issue a formal mise en demeure (letter of demand) giving a final deadline for completion before switching remedies. Gather all evidence of the seller's delays, any additional costs incurred, and the original title deed. A solicitor can draft the amended claim to ensure the termination is valid and the damages are properly calculated. This case law protects buyers who initially try to salvage the contract but are left with no choice but to walk away.

Co-owners terminate management contract after accounting disputes

Two co-owners in Nice jointly own a retail unit leased to a business under a management contract managed by one co-owner. For 12 months, the managing co-owner fails to provide proper accounts or distribute the other's 50% share of profits, totalling an estimated €14,000. The aggrieved co-owner first demands full performance—proper accounting and payment—but when none is forthcoming, they amend the legal action to seek termination of the management arrangement and appointment of an independent administrator.

Application pratique:

Under the rule that an action for performance and an action for rescission or termination aim at the same end, the court can dissolve the management contract even if the initial claim only requested compliance. The non-managing co-owner should meticulously document every request for accounts, ignored deadlines, and any partial or misleading information given. Before applying to the court for termination, send a formal registered letter setting a final 30-day deadline for full performance, referencing the co-ownership agreement and the statutory duty to account. The court may also award damages for the unpaid profits alongside the termination, so keep a running financial record of losses.

The Action for Performance and the Action for Rescission or Termination of a Contract

The situation

What the law says

Key takeaways

Informations juridiques

Source

Mots-clés

Cas d'usage pratiques

Landlord switches from rent claim to lease termination

First-time buyer rescinds purchase after seller's repeated delays

Co-owners terminate management contract after accounting disputes

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