When construction works are blocked due to a contracting party’s failure to perform or refusal to remedy defects, is it possible, in the absence of specific contractual provisions, to have completed/resumed the works by a third party (or oneself) at the expense of the defaulting contracting party?
1) First, it is necessary to send the defaulting contracting party a formal demand letter (mise en demeure) by registered mail with acknowledgement of receipt, requesting that the party cure the failures within a set timeframe. The timeframe must be reasonable. Also, that contracting party should be informed that should it fail to perform within the timeframe, the right of replacement (faculté de remplacement) will be resorted to, meaning a third-party will be sought to do the work at the defaulting party’s expense.
In case of refusal or the absence of a response, one would need to seek businesses that could perform the work, all while keeping in mind the general obligation to minimize one’s own damages by seeking to reasonably limit the expenses incurred for the resumption of the works. Thus, it is recommended to obtain several fee quotes so the expenses may not be contested, and not to accept overpriced fees thinking that in any case they will be charged to the defaulting party.
2) Then, it would usually be appropriate to file a legal action for an order authorising one to have the works carried out by a third party at the expense of the defaulting party (Art. 1144 Civil Code). It is only in case of emergency (an emergency which one must be able to prove) that the contract termination with the right of replacement may be effectuated unilaterally, without having to undertake a legal proceeding that can sometimes last for years. In this case, one should inform the defaulting party of the termination of all or part of the contract and of the undertaking of the works by a third party, at the defaulting party’s expense. It should be noted that the defaulting party can always subsequently go before the courts to have verified the merits of such a decision.
3) Finally, before carrying out/resuming the works, it is important to have an expert and/or bailiff report allowing the justification of the unfinished or defective works or the need and the cost of the works done by virtue of the right of replacement.
Should one not comply with the above, the liability of the party that exercises the right of replacement risks being triggered.
Thus, we can only recommend more specifically settling these issues contractually, to avoid having to resort to prior legal proceedings.
By Vanessa LOMORO, Counsel – Avocat à la Cour