Case 9: promises to pay more than was agreed I

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sales price is set in conformity with art. 1591 of the Civil Code, it cannot be unilaterally revised.

Nevertheless, the parties may modify their contract by mutual consent. The modified contract is then binding (art. 1134 of the Civil Code). It does not matter whether the modification is so important that the contract as modified is considered a novation, that is, a new contract substituted for the old one, or so unimportant that the old contract is deemed to continue in existence with the modification.

Paul cannot refuse to pay the increased price on the grounds that Robert failed to perform since he performed fully. He can claim, however, that his consent was not validly given on the account of duress (violence) as provided by arts. 1111–15 of the Civil Code. If he is successful, the modified contract will be rescinded, and he may possibly be able to obtain damages. He will then be liable only for the original contract price.

Duress is both a tort and a defence to a contract action because it vitiates the contract. To prevail, Paul must prove (a) that an illegitimate threat was made, and (b) that this threat induced him to make the contract. We will consider these elements in turn.

To constitute duress, according to art. 1112 of the Civil Code, it is sufficient that a threat be directed against one’s ‘person’ or ‘fortune’.1 Nevertheless, according to the case law, economic difficulties do not, in themselves, constitute a case of duress (contrainte morale).2 Thus the question arises whether Robert’s refusal to perform until the contract price was raised would be deemed to be an illegitimate threat which could be grounds for annulling the contract.

The Cour de cassation is fairly cautious when applying the doctrine of duress to situations where one of the parties is unable to protect its own interests because of its precarious economic situation. In this respect, the French courts’ attitude to the question of economic duress may differ from that of courts in other countries such as England. The cases in which such a claim has failed concern the renewal of exclusive distribution agreements where the underlying problem is one of unequal bargaining power: sufficient pressure was exercised to force the distributor to agree to disadvantageous contractual conditions.3 We have not found any cases

1 Nor, according to art. 1111 of the Civil Code, does it matter if the threat was made by a third party or a contracting party.

2 Paris, 24 May 1983, RTDCiv. 1984, 708, note J. Mestre.

3Com., 20 May 1980, Bull. civ. III, no. 212; D 1978, note H. Souleau, RTDCiv. 1984. This kind of situation is now regulated in two ways: either, in the field of competition law, as an abuse of economic dependence under art. 8 of the ordinance of 1 Dec. 1986 or, in the

where the pressure consisted of a threat by the other party not to perform. French law could be hostile to a claim of economic duress because it takes a formalistic attitude to the modification of the agreement: consent has apparently been given by both parties.4

The caution of French courts in extending the concept of violence is reflected in the control exercised over the lower courts when they give relief for duress that does not consist of threats of physical harm (contrainte morale). If the judges fail to explain fully their basis for doing so, they risk seeing their decision quashed by the Cour de cassation.5 This caution is not required by the express language of the Code but rests on an interpretation by the courts of art. 1114 which provides that mere fear and reverence for one’s ancestors is insufficient for a contract to be annulled.

The illegitimate character of the threat may be established from the means used or the objective sought. Here, Paul could claim that Robert blackmailed him into raising the contract price in order to obtain performance in violation of the principle that contracts are to be enforced.

Supposing that the threat is illegitimate and sufficient to constitute duress, Paul still will not obtain relief unless it had a determining influence on his conduct, inducing him to contract. The requirement of art. 1112 of the Civil Code of ‘a considerable and present evil’ means that the evil must be sufficiently serious for the duress to have been determining. Simple fear would not suffice. Paul must prove that he would never have accepted a revision of the price in the absence of the threat.

The language of art. 1112 is not perfectly clear. When it speaks of a ‘present evil’, it must mean that the fear must be inspired in the present, for the evil is necessarily in the future. It is not clear how its seriousness should be evaluated since the two paragraphs of art. 1112 are contradictory. The first paragraph requires an objective abstract judgment whereas the second suggests a subjective and concrete approach. Case law has

field of consumer law (art. L. 132–1 of the Code de la consommation), as a question of unfair contract terms (clauses abusives) when there is an ‘abuse of weakness’ under art. L. 122–8 of the Code de la consommation.

4Ghestin, Traité de droit civil no. 579, pp. 561 ff. suggests that violence is rarely used; see also Terré, Simler, and Lequette, Les obligations no. 240, p. 197, who discuss whether civil law generally should enlarge their view of duress to make it coincide with that of specialized areas such as competition law (ibid., notes 5 and 6). They suggest that the hostility of the Cour de cassation is not necessarily shared by the trial and appeal courts. However, these examples concern attempts to extend the concept of duress to situations of economic dependence. Thus the discussion concerns a problem quite different from the one before

us.

5See, in particular, Com., 20 May 1980, Bull. civ. III, no. 212, p. 170, quashing Cour d’appel, Paris, 27 Sept. 1977, D 1978, 690, note H. Souleau.

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definitely decided in favour of a concrete evaluation, conforming to the role of the intentions of the parties as recognized by French law. The courts therefore evaluate the particular situation of the victim to decide whether the threat had a determining influence. The court would also take into account Paul’s business experience. If Paul is inexperienced, it is obvious that he has much more chance of succeeding with his claim. On the facts, it is unclear whether opening the restaurant is the beginning of his business activity or not: he may already own other restaurants, or have other business experience.

It also matters whether Paul had a viable alternative. To see if he did, we must consider the options open to him. Under art. 1144 of the Civil Code, Paul could sue Robert for specific performance (exécution en nature) or, in the alternative, for judicial authorization to substitute for Robert’s performance that of another contracting party who is able to supply him on time (faculté de remplacement). We think this option would be available in Case 9(b) in which the parties have made a contract of sale and even in Case 9(a) in which they have made a construction contract.6 The option is available as long as it is possible to substitute another party for the party in breach.

If Paul wished to find another contracting party, he would have a choice. First, he could put Robert on notice and go to court. The judge can authorize replacing Robert, or he can order him to perform under astreinte (a daily fine is payable as long as performance is not carried out), or he can award damages. If Paul were successful, he could also recover the extra costs of buying the supplies for the restaurant elsewhere. It is also possible to combine these remedies. As the parties are merchants (commerçants), any proceedings would be before the Tribunal de commerce (art. 873 of the New Code of Civil Procedure).

Second, he could bring the matter before the court very quickly (twentyfour or forty-eight hours) by référé (interlocutory proceedings), asking the court to issue an injonction de faire ordering performance.

Third, if Paul can show that his situation is urgent, he could replace Robert with another supplier without going to court.7 If he acts on his own initiative, the courts can always ratify his action subsequently. This exception to the general rule that judicial intervention is required is supported by commercial usage and based on a recognition that it can be impractical to go to court first.

6Civ. 1, 8 Oct. 1962, Bull. civ. I, no. 400. For an explanation of the mechanism of art. 1144, see generally P. Simler, Juris-classeur, arts. 1136–45, Fasc. 10.

7For example, Civ., 2 July 1945, D 1946, 4; RTDCiv. 1946, p. 39, note J. Carbonnier; 7 Dec. 1951, D 1952, 144; M. Vasseur, ‘Urgence et le droit civil’, RTDCiv. 1954, no. 11, 403.