EQUITE ET SEVERITE DANS LA SANCTION D'UNE FAUTE CONTRACTUELLE

Abstract

In matters of remedies for breach of contract, the provisions adopted in the reform of the Civil Code go in opposite directions. Of course there are available rules of equity. The most famous is the power of the court to reduce an abusive penalty, a rule which is interpreted too narrowly by some judges and very broadly by others. Other rules of equity have to do with default notice and resolution of the contract. The most striking, however, are the ones which allow the tribunal to authorize or deny the exercise of certain remedies (resolution, repossession, for example); in many instances, unfortunately, this power has remained a dead letter for five years because of the lack of appropriate registers for the registration of rights. Opposite from equity is the binding force of contracts, which the legislator has increased by reinforcing some remedies. First, the victim of a breach can now obtain specific performance in almost all situations, the exceptions to this remedy being interpreted more and more narrowly. Second the Civil Code allows the victim to terminate the contract without the intervention of the court; this remedy being new and rather radical, it is not surprising that it is surrounded by some confusion presently, which the author attempts to dispel.