Formal notice is a fundamental legal mechanism for establishing the non-performance of an obligation. At the crossroads of the law of obligations and enforcement procedures, this tool calls on a defaulting debtor before initiating formal proceedings. But how does this concept operate outside France, and what are the different ways in which it is used? the practical consequences and legal effects arising therefromwhich vary significantly from one country to another?
1. A multi-faceted concept
In the French legal system, a formal notice represents "the state of a debtor who is late in performing his obligation" (Civil Code, art. 1231). It imposes damages and risks on the addressee. However, this apparently simple concept proves to be complex internationally.
2. Formal notice in different legal systems
Common law: a French 'mystery
Anglo-Saxon lawyers consider the mise en demeure to be a French specificity that is difficult to translate. According to J.C. Reitz, it remains "a real mystery" for common law practitioners. The expressions "Legal formal notice", "Demand" or "Putting in default" try to capture this notion without ever encompassing it completely.
Reitz notes that "In fulfilling its principal function, which is to protect the debtor against the accumulation of liability for damages, the rule treats debtors with a special indulgence unknown in the common law..
Belgian and Swiss law: similarities
The Belgian and Swiss systems have mechanisms similar to French law. In Belgium, the mise en demeure is defined as "the enticement of the debtor in energetic terms, by which the creditor reminds him, in a clear and unequivocal manner, of the need to perform his obligation in kind" (P. Wéry).
Swiss law also recognises this concept, with comparable legal effects on the defaulting debtor.
German law: a different approach
In Germany, the equivalent of a formal notice (Abmahnung) has distinct characteristics. Unlike the French system, Abmahnung can be considered an aggressive commercial act, or even an act of unfair competition in certain contexts.
The criteria for form and content are particularly rigorous, with potentially more severe legal consequences than in France.
3. Practical advice for cross-border situations
Adapted formulations
In an international context, terminology needs to be adapted to the specific characteristics of the recipient country:
- In the English-speaking world: "Formal notice" or "Notice of default" are preferable.
- In German: use "Mahnung" for a reminder or "Abmahnung" for a formal notice.
- In Spanish: use "Requerimiento".
The expression of the will to obtain performance must be explicit. According to article 1344 of the French Civil Code, the formal notice must contain "a sufficient challenge".
Formal requirements
Delivery methods vary considerably:
- In Germany: registered mail with acknowledgement of receipt is still the preferred method.
- In the United Kingdom: electronic submission with proof of receipt is generally sufficient
- In Switzerland: the use of a bailiff is not necessary, unlike certain French procedures.
Article 43 of Regulation (EU) No 1215/2012 specifies that extrajudicial documents may be transmitted for service in accordance with the procedures laid down in that Regulation. In addition to the formal requirements, it is important to understand how to draft and serve a formal notice effectively is crucial, particularly when cultural and legal specificities come into play.
Appropriate translation and terminology
Legal translation requires absolute precision. A poorly translated document can lose its legal effect.
Example: in Spain, a formal notice translated literally as a "puesta en mora" could be reclassified as a simple payment reminder, without the desired legal effects.
4. Developments and trends
European harmonisation
The European Union is moving towards harmonisation of civil procedures. Regulation (EC) no. 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters illustrates this desire.
This standardisation facilitates the transmission of documents between Member States, but does not resolve conceptual differences between legal systems.
Impact on international trade relations
In international commercial contracts, the Vienna Convention on the International Sale of Goods (CISG) does not expressly provide for a formal notice mechanism. However, article 47 allows the buyer to give the seller a reasonable additional period in which to perform its obligations.
This pragmatic approach reflects the need to adapt legal concepts to cross-border commercial realities.
Algerian law, influenced by French law, provides in Article 179 of its Civil Code that "unless otherwise provided, reparation is due only if the debtor is put in default", thus adopting the French principle.
Companies involved in international transactions must therefore remain vigilant and adapt their practices to local conditions, despite attempts at harmonisation.
Sources
- Deharo G., "Répertoire de procédure civile - Mise en demeure", Dalloz, September 2022
- Reitz J.C., "The Mysteries of the Mise en Demeure", 63 Tul. L. Rev. 85 (1988)
- Wéry P., "Droit des obligations. Volume 1. Théorie générale du contrat", 3rd edn, Brussels, Larcier, 2021
- Van Ommeslaghe P., "Traité de droit civil belge. Tome II. Les obligations", Brussels, Larcier, 2013
- Liron R., "Essai sur la nature de la demeure du créancier d'après le droit suisse", ed. H. Jaunin, 1953.
- Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
- Vienna Convention on the International Sale of Goods (CISG), United Nations, 1980
- Algerian Civil Code, article 179
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