All questions

Breach of contract

i Contractual liability

Sectoral laws may specify parties' particular obligations, as is for instance the case for sales contracts. Indeed, a buyer benefits from protective provisions such as a warranty against eviction, a warranty against hidden defects, an obligation of proper delivery and a product liability claim.

In any case, to incur the contractual liability of one party, a co-contractor must demonstrate a breach of contract that caused damage to him or her.

Breach of contract

A contract is deemed breached if at least one obligation was not performed or was delayed, unless it was owing to an external cause that cannot be imputed to the party.

The requirements regarding the performance of a contract differ depending on whether the obligation was results-based or best-efforts-based. In the first case, the claimant only has to prove that the obligation was not achieved. In the second case, the claimant has to prove that his or her co-contractor did not perform the contract as well as possible or was negligent or not diligent enough.


The breach of contract must have harmed the co-contractor. French courts can order the compensation of different damages such as material injuries, non-pecuniary damages or bodily harms.

However, a debtor is liable only for damages that were foreseen or that could be foreseen at the time of the contract, unless the debtor's failure is owing to his or her own gross negligence or fraud.

Causal link

A causal link must be demonstrated between the breach of contract and the damages, that is to say that the damages must be the immediate and direct consequences of the non-performance of the agreement.

ii Burden of proof

Each party must prove, according to the law, the facts necessary for the success of the claim.

Proceedings pertaining to the production of evidence

There is no procedure of discovery under French law.

Nevertheless, a participatory procedure, partly inspired by the discovery model, was introduced in 2010. Per this scheme, parties may agree not to seize a court, at least for the duration of their agreement, and instead to work together, with their counsels, in order to find an amicable settlement of their dispute. In such contexts, parties must contractually organise the terms of their exchange of evidence.

In anticipation of a proceeding, a court may also order legally permissible preparatory inquiries at the request of any interested party, by way of a petition or by way of a summary procedure, if there is a legitimate reason to preserve or to establish, before any legal proceedings, the evidence of the facts upon which the resolution of the dispute depends. This scheme is the most common mean to obtain evidence.

Rules of evidence

A claimant requesting the performance of an obligation must prove it. Similarly, a person claiming to be released from an obligation must prove the payment or the fact that caused the extinction of his or her obligation.

Unless the law states otherwise, evidence may be brought by any means. Nonetheless, any contract obligation exceeding €1,500 must be proved by a private or authentic act unless:

  1. it is materially or morally impossible to obtain the written proof;
  2. it is common under the customs not to write the contract down; or
  3. the written proof was lost owing to a force majeure.

A confession, a decisive oath or prima facie evidence may be substitutions for a required written proof.

The law may establish presumptions related to some acts or facts. These presumptions are said to be simple, mixed or irrefutable. It is possible to prove the contrary of a simple presumption by any mean. However, a mixed presumption can only be rebutted by the means of proof stated by the law, and the irrefutable presumption cannot be rebutted.