The formal notice is no joke. This little legal act, dreaded by debtors, plays a major role in our legal arsenal. It marks the transition from an amicable phase to the antechamber of litigation. Before considering legal proceedings, it is a decisive step in settling a dispute or obtaining payment of a debt.
1. What is a formal notice?
Definition and origin
From the Latin "mora" meaning "delay", formal notice evokes harmful inaction. The expression "péril en la demeure" reflects the risks inherent in any delay in performance.
In legal terms, "demeure" refers to the state of a debtor who is late in performing his obligation. This state generates damages and risks for the debtor, in accordance with articles 1231 et seq. of the Civil Code. A letter of formal notice is a formal request to a person to perform within a set period.
Place in the legal system
The formal notice is issued after the obligation has arisen but before it is performed. It establishes the non-performance and triggers sanctions against the recalcitrant debtor.
More than a simple reminder, it is sometimes a mandatory prerequisite for debt collection. Article R. 133-3 of the French Social Security Code requires this to be done prior to any procedure to recover social security contributions.
Originating in the law of obligations (articles 1344 to 1345-3 of the Civil Code), it is applied in many fields. A search reveals that this expression appears 1502 times in 60 different codes!
2. Legal nature of formal notice
A unilateral legal act
A formal notice is a unilateral expression of intent. The author expresses his impatience and his intention to obtain performance.
It produces specific legal effects, as the Cour de cassation has pointed out (Civ. 1re, 24 June 1975, no. 74-10.644). The creditor thus puts pressure on the debtor to perform.
An interpellative and declarative act
The formal notice reminds, informs and challenges. It exposes the recipient to potential sanctions if he persists in his attitude.
Its content goes beyond a simple invitation: it calls on the debtor one last time before legal action is taken. It notes the delay without creating any new rights. The summons must be sufficient for the document to have legal force.
An extrajudicial and receptive document
Although a formal notice is a prerequisite to the exercise of a right, it remains an extrajudicial act. Case law specifies that it is not contentious in nature (Civ. 1re, 20 January 2021, no. 19-20.680).
A formal notice is a receptive act - it exists only through notification to the addressee. Without this notification, it has no legal effect. "A formal notice can only be effective if it has reached its addressee" (Civ. 2e, 16 November 2004, no. 03-16.270).
3. Conditions of validity
Consent: a firm and precise will
The formal notice must express a free and informed will. This will must be firm and precise, demonstrating the intention to obtain performance of the undertaking.
In case of doubt, the judge will determine the scope of this intention. The request must specify the sum due or the service expected.
Capacity: who can issue/receive a formal notice
The capacity to issue a formal notice is widely recognised. Even an incapable person (a minor or an adult under guardianship) could validly send a formal notice, since it is a conservatory act.
On the other hand, the capacity to receive a formal notice is more restrictive. For the Cour de cassation, a formal notice "does not constitute a simple conservatory act" (Civ. 3e, 3 July 1996, no. 94-18.325). The addressee must have the capacity to perform administrative acts.
Subject: What a formal notice can and cannot do
A formal notice does not create a new obligation. It is a reminder of the binding nature of a pre-existing commitment.
It does not constitute fault on the part of the debtor (Civ. 3e, 5 July 2011, no. 10-17.351) or bad faith (Civ. 1re, 17 April 2019, no. 18-13.842).
Its purpose is to question the addressee about the non-performance of an obligation. As the interface between the amicable and contentious phases, it must provide precise information. The Cour de cassation requires that its content "enables the addressee to become aware of the nature, cause and extent of his obligation" (Civ. 2e, 17 March 2022, no. 20-18.056).
Article 1225 of the Civil Code requires the formal notice to state "expressly that if the debtor fails to fulfil his obligation, the creditor shall be entitled to rescind the contract".
4. Form and content of formal notice
Authorised forms
Article 1344 of the Civil Code provides for several forms of formal notice:
- Summons (document issued by a bailiff)
- A deed of summons (recorded delivery with acknowledgement)
- When the obligation falls due, if the contract so provides
In some cases, a registered letter with notice is required. This form ensures the security of the procedure by proving that the letter was sent and the date of receipt.
Mandatory information
To be valid, the formal notice must include :
- The date of the letter
- Sender and recipient details
- The words "mise en demeure" clearly indicated
- The amount due or the obligation to be performed
- The basis of the claim (contract, invoice)
- The time allowed (reasonable time)
- The consequences of failing to provide a satisfactory response
Signing is a recommended formality to avoid any disputes.
Model and example
Sample wording for a formal notice to pay:
"I give you formal notice to pay the sum of [amount] euros corresponding to [cause], within [period] of receipt. If you fail to do so, I shall be obliged to proceed with legal collection, which will entail additional costs."
Sample letters are available online. For complex cases, it is best to use a professional service to draft a formal notice.
5. Legal effects of formal notice
Starting point for interest on arrears
Notice of default automatically gives rise to interest on arrears at the legal rate for financial obligations (article 1344-1 of the French Civil Code), without justification of damages.
Transfer of risk
In the case of obligations to deliver something, formal notice transfers the risks to the debtor (article 1344-2 of the Civil Code). In the event of loss, it is the debtor who will bear the consequences.
Forfeiture of term
In loan contracts, formal notice may result in the acceleration of the term, making the entire amount due payable, if a clause so provides.
Prerequisite for resolution
A formal notice is generally a mandatory prerequisite for terminating a contract, except in emergencies. It sets the starting point for the period of time allowed before the contract is terminated.
6. Challenges and defences
Challenging a formal notice
The recipient may contest a formal notice on several grounds:
- Non-cash receivables
- Amount contested
- Problem with the procedure
- Limitation period exceeded
- No valid cause
The reply must be sent by recorded delivery to constitute proof.
Consequences of failing to respond
Failure to react may result in :
- Obtaining a writ of execution
- Seizure of assets
- A court conviction
- Additional costs
The CNIL regularly issues formal notices to companies that are not complying with their legal obligations. These formal notices require the practices concerned to be updated, failing which they are liable to sanctions.
In practice, our firm recommends paying particular attention to the content of the formal notice, especially when it is a mandatory prerequisite for taking legal action. Judges exercise rigorous control over the information it contains. When faced with a formal notice, consult a professional to assess the situation and determine the best course of action.
If you would like us to analyse your case or help you draft a letter of formal notice concerning work that has not been carried out or a service that is unsatisfactory, our team is at your disposal.
Sources
- Civil Code, articles 1231 et seq., 1344 to 1345-3, 1225 and 1226
- Social Security Code, articles L. 244-1, L. 244-2 and R. 133-3
- Monetary and Financial Code
- Code of civil procedure
- Civ. 1st, 24 June 1975, no. 74-10.644
- Civ. 2e, 16 November 2004, no. 03-16.270
- Civ. 3e, 3 July 1996, no. 94-18.325
- Civ. 3e, 5 July 2011, no. 10-17.351
- Civ. 1st, 17 April 2019, no. 18-13.842
- Civ. 2e, 17 March 2022, no. 20-18.056
- Civ. 1st, 20 January 2021, no. 19-20.680
- DEHARO Gaëlle, "Répertoire de procédure civile - Mise en demeure", Dalloz, September 2022
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