In civil and commercial matters, where the existence of an obligation is not seriously disputed, the judge may award a money order to the creditor or order the performance of the obligation (articles 809, al.2 and 873, al.2 of the New Code of Civil Procedure). This remedy, although often limited to obvious and indisputable money obligations owed under a contract or a banking instrument, is also available to those who suffered injuries giving rise to claims in tort.
In a case of noise pollution, the plaintiff had sued the defendant for a provisional advance payment of damages. As the claim was defeated in first instance, the plaintiff appealed to the Court of Appeal of Douai where the claim prevailed although the defendant had alleged that it should be denied as allegedly the plaintiff had failed to establish the damage it suffered (Douai, April 4 1996). On appeal before the French Supreme Court (Cour de cassation), the judgment of the Court of Appeal was upheld (Cass. civ. 2e, November 1998).
The Cour de cassation found that an advance on damages could be awarded as long as the lower court was satisfied that the existence of the obligation was not arguable. Moreover, in this particular case where at least a portion of the damage suffered could be quantified by the lower court without there being in the opinion of such court any serious dispute in that respect, the Cour de cassation found that the lower court could order payment of such indisputable portion.
For further information on this topic, please contact Philippe Blaquier-Cirelli at Jeantet & Associés, Paris office, by telephone (+33 1 45 05 80 08) or by fax (+33 1 47 04 20 41) or by e-mail ([email protected]). Alternatively, contact Elie Kleiman at Jeantet & Associés, New York office, by telephone (+1 212 314 9499) or by fax (+1 212 582 3806) or by e-mail ([email protected]).
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