Article 387: Rescission after notice to perform: reasonable period

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 8605/2552 (2009)

   Where the parties own conduct - here repeated design changes that made the original completion date unattainable - shows they no longer treat time as of the essence, the employer cannot rescind merely for delay. The right to rescind is not lost: under section 387 it may be exercised only after the employer has first given notice fixing a reasonable period for performance and the contractor has still failed to perform. Rescission without that notice is a wrongful exercise of the right.

   The plaintiff took a subcontract to build a clubhouse, to be completed by 30 November 1999. From 22 August 1999 the employer changed the drawings in several respects, adding steel and concrete and requiring work already built to be demolished and redone, so that completion by the original date became impossible. The employer rescinded on 26 November 1999 without any prior notice. The Supreme Court held that the parties had by their conduct changed an essential term and no longer treated the completion date as essential, so the delay was not the contractor fault; the employer could rescind for delay only after giving notice under section 387 fixing a reasonable period, and rescission without it was wrongful. The employer was itself the party in breach for failing to pay for the additional work, and was liable to the contractor.

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2. Arrêt de la Cour suprême n° 452/2549 (2006)

   A creditor who repeatedly accepts late payment waives the automatic rescission clause and must give notice before exercising a right to rescind.

   An instalments contract that stipulated automatic rescission on late payment was waived by the creditor's repeated acceptance of late payments over 22 instalments; the creditor therefore could not subsequently invoke the automatic rescission clause without prior warning.

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Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.