An effective formal notice can avoid many a legal hassle. This document, which is the interface between the out-of-court and in-court phases, requires particular care in both its drafting and its notification. For optimum management, particularly in terms of debt collectionExpert assistance is often recommended.
1. The importance of content and form
For a basic understanding of legal principles, definitions and issues, the formal notice is a unilateral legal act that calls a debtor to account for late performance. It marks the starting point for default interest and crystallises the recipient's default (Civ. 3e, 4 March 2021, no. 18-25.755).
It must be carefully drafted, as insufficient formalism can compromise its effectiveness. Imprecise content or irregular notification may weaken the creditor's position, or even invalidate subsequent proceedings. However, it is important to be aware that there are cases where it is possible to legally issue a formal notice.
2. The content of the formal notice
Mandatory information
All formal notices must contain a number of essential elements:
- Explicit mention of "formal notice
- The date (a crucial element that marks the starting point for interest)
- The precise identity of the author and recipient
- A detailed report on the delay concerning an existing obligation
- A clear request for performance
Case law strictly controls this information. The recipient must be able to understand what he or she is being accused of and have the information needed to contest the claim (Civ. 2e, 7 April 2022, no. 20-21.072). To better understand the impact of these elements on subsequent events, it is essential to understand the legal effects of formal notice.
The right formulation
The language should be clear, firm but measured. Language that is abusively comminatory could be considered disproportionate.
Article 1344 of the Civil Code requires "sufficient interpellation". This wording must clearly express the creditor's desire to obtain satisfaction, as Nathalie Porchy-Simon points out in her book Civil law 2nd year. Obligations (15th ed., 2022).
In the case of loan contracts, case law requires that the notice of default explicitly mention the possibility of accelerated repayment (Civ. 1re, 4 April 2024, no. 21-12.274).
Turnaround time
The debtor must be given a reasonable time to perform. The requirement that performance be "immediate and without delay" does not satisfy the formal requirements (Civ. 3e, 14 Dec. 1994, no. 93-12.191).
Certain texts impose a specific time limit, such as article R. 133-3 of the Social Security Code for the recovery of contributions.
The courts will check that the deadline actually allows the recipient to put an end to the breach (Civ. 1re, 8 Jan. 2020, no. 18-24.232).
3. The different forms of notification
Summons by bailiff
A summons is an extra-judicial document served by a bailiff ordering the addressee to perform an obligation. It is subject to the provisions of articles 648 to 650 of the Code of Civil Procedure.
This form has the advantage of constituting solid proof of the notification and its content.
The act of sufficient interpellation
Article 1344 of the Civil Code authorises any form of deed involving sufficient interpellation. This can be :
- A simple letter
- A hand-delivered letter
- A registered letter with acknowledgement of receipt
The latter option is preferable to provide proof of dispatch and receipt.
The contractual payability clause
The parties may contractually provide that formal notice is to be given only when the obligation falls due (art. 1344 C. civ.).
However, beware of unfair terms. The Court of Cassation has referred to the CJEU the question of whether a contractual waiver of formal notice can be considered unfair in consumer contracts (Civ. 1re, 16 June 2021, no. 20-12.154).
Legal action
A legal claim constitutes formal notice if it clearly expresses the intention to obtain performance by the addressee (Civ. 3e, 30 Nov. 1988, no. 87-15.519).
Interest on arrears starts to accrue, even if the success of the claim is based on a cause raised at a later date.
4. Special cases of notification
Among the specific situations, it is crucial to explore the drafting and notification requirements adapted to the different international legal systems concerning formal notice abroad.
Multiple recipients
In principle, the formal notice must be sent to each debtor individually (Civ. 2e, 26 March 2015, no. 14-13.327).
However, where there is joint and several liability between co-debtors, a formal notice sent to one of them has effect in respect of all (Civ. 1re, 20 Dec. 2017, no. 16-12.129).
This rule applies only within the limits of solidarity (Civ. 1re, 25 May 2022, no. 20-21.488).
Reception problems
As a formal notice is an act of reception, it must reach its addressee. However, failure to receive it does not affect its validity if it has been sent properly (Civ. 2e, 24 Jan 2019, no. 17-28.437).
It is not necessary to prove that the addressee actually took cognisance of them (Civ. 1re, 24 June 1975, no. 74-10.644). If the debtor deliberately fails to remove the letters, the formal notice remains valid (Civ. 1re, 16 Feb 2022, no. 20-18.266).
Change of address
Judges do not automatically cancel a formal notice sent to an old address. They verify whether the addressee had informed the sender of his change of address (Civ. 2e, 2 June 2022, no. 19-15.669).
In certain cases, a formal notice sent to the "accounts department" of a legal entity is deemed valid, even if it is not sent to the manager's home address (Civ. 3e, 30 Jan. 2013, no. 11-26.464).
Sources
- Civil Code, articles 1231, 1344 to 1345-3
- Code of civil procedure, articles 648 to 650
- Social Security Code, articles L. 244-1, L. 244-2, R. 133-3
- Civ. 1st, 4 April 2024, no. 21-12.274
- Civ. 3e, 4 March 2021, no. 18-25.755
- Civ. 2e, 7 April 2022, no. 20-21.072
- Civ. 3e, 14 Dec. 1994, no. 93-12.191
- Civ. 1st, 8 Jan. 2020, no. 18-24.232
- Civ. 3e, 30 Nov. 1988, no. 87-15.519
- Civ. 1st, 16 June 2021, no. 20-12.154
- Civ. 2e, 26 March 2015, no. 14-13.327
- Civ. 1st, 20 Dec. 2017, no. 16-12.129
- Civ. 1st, 25 May 2022, no. 20-21.488
- Civ. 2e, 24 Jan. 2019, no. 17-28.437
- Civ. 1st, 24 June 1975, no. 74-10.644
- Civ. 1st, 16 Feb. 2022, no. 20-18.266
- Civ. 2e, 2 June 2022, no. 19-15.669
- Civ. 3e, 30 Jan. 2013, no. 11-26.464
- PORCHY-SIMON Nathalie, Civil law 2nd year. Obligations15th ed. 2022, Dalloz
- DEHARO Gaëlle, "La mise en demeure", Répertoire de procédure civile, 2022
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