Collo vs McDo

Legal concepts

Formal notice and the order to pay

The act by which a creditor demands that its debtor pay — and which starts the countdown of the termination clause.

In brief

  • Formal notice: a summons or any act constituting a sufficient demand (Art. 1344 of the Civil Code).
  • It starts the running of default interest at the statutory rate (Art. 1344-1).
  • Order to pay: a deed served by a commissaire de justice (formerly a bailiff), carrying a warning, which opens a period at the end of which a sanction is triggered.
  • To trigger a termination clause, the formal notice must expressly mention the clause (Art. 1225, para. 2).

Formal notice is the act by which the creditor formally calls on the debtor to perform. The order to pay is its most threatening form: served by a commissaire de justice, it opens a period on the expiry of which a specific sanction is triggered — the termination clause taking effect, or a seizure.

Its wording is not a formality. To trigger a termination clause, the formal notice must expressly mention the clause. And the case law assesses the fairness of the implementation in the light of the order itself: what is complained of elsewhere does not count.

In the Antibes case file, it is the orders to pay served in 1998 that the Paris Court of Appeal held to have been served in bad faith — hence the wrongful nature of the termination.

Sources

External sources.

  1. Civil Code, Article 1344 (forms of formal notice) — Légifrance
  2. Civil Code, Article 1344-1 (default interest) — Légifrance

Where this comes up in the case file

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