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performance of another’s obligation 437

2. Who may perform?

In principle any person may perform another person’s obligation: as it

is often put, ‘in principle the personality of the solvens is a matter of

indifference’.16 The third-party need not for this purpose even purport to

act in the name of the debtor in offering the prestation, as long as he

offers the creditor exactly the subject-matter of the debtor’s obligation.

While in French law a typical context for third-party performance of an

obligation is the case where the debtor asks a third party to perform the

prestation for him, there is no need for the third party to have the debtor’s

consent or authority to act in this way (though the issue of consent does

affect the possible recourse which a third party may have against the

debtor).17

However, this general principle is qualified by article 1237 of the code,

which disallows third-party performance where the creditor has an in￾terest in performance by the debtor himself. In general, the issue of a

creditor’s interest is a matter for the juges du fond and they have inter￾preted the matter generously from the point of view of the creditor.18 The

creditor’s ‘interest’ for this purpose is typically found in the fact that the

creditor in entering the contract with the debtor relies on the latter’s skill

or other personal characteristics, of which he should not be deprived by

third-party intervention. However, it may be found in other elements, so

that, for example, where a person sells property in return for an annual

payment (rente viag`ere), the seller (creditor) may have a legitimate inter￾est in refusing payment of the rente by a third party even if the buyer

(debtor) is insolvent, as non-payment of the rente would otherwise entitle

him to terminate the contract and recover his property.19 Also on this

basis, the courts have allowed a landlord of a farm to refuse to accept the

payment of rent by the father of the tenant farmer where both the tenant

and his father’s attitude suggested that the father did not treat his previ￾ous assignment of the farm as final: the landlord was justified in fearing

that the father’s payments could later be used as evidence in support of

his ‘abusive allegations’.20 Related to this is the position taken by French

courts as regards the parties’ exclusion of third-party performance: while

the Civil Code does not require that the third party acts with the consent

16 Malaurie and Aynes, ` Droit civil, Les obligations, 559. 17 Below, 439 ff. 18 J. Issa-Sayegh, ‘Extinction des obligations, Paiement: Caracteres g ` en´ eraux. Parties. ´

Effets’, in: Juris-Classeur civil, art. 1235 a 1248, fasc. 64 ` a 67, no. 59, 11. ` 19 Civ. 24 Jun. 1913, DP 1917.1.38. 20 Civ. (3) 23 Feb. 1972, Bull. Civ. III, no. 126, 92.

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of the debtor, French courts accept that if both the debtor and creditor

agree (whether in advance or subsequently) that only the debtor should

perform, then this agreement will be given effect, subject to its being

‘legitimate’.21 On the other hand, the creditor may not oppose perfor￾mance by a third party simply on the basis that it is useless or even

dangerous to the debtor.22

This law, then, is expressed in terms of what a third party may do,

and whether a creditor may refuse third-party performance if the due

paiement is tendered. But what does this mean in practice? Modern French

law possesses no notion of mora creditoris to categorise the situation

where the creditor wrongly refuses due performance.23 Instead, where

the prestation consists of the supply of money or property, French law

possesses a procedure by which tender of what is due may be formally

offered to the creditor and then ‘consigned’ to the relevant approved

depositary.24 If the creditor does not then accept the formal tender, af￾ter the appropriate procedures and a decision of the court, the debtor

is discharged by operation of law.25 This procedure applies as much to

third-party paiement as to paiement by the debtor.26 Moreover, more gen￾erally, it would seem that tender of a conforming prestation b y a third

21 Issa-Sayegh, ‘Extinction’, 10; B. Starck, H. Roland and L. Boyer, Droit civil, Les

obligations, vol. III, Regime g ´ en´ eral ´ (5th edn, 1997), 63; Req. 7 Jun. 1937, DH 1937.427

(where the third party was held able effectively to intervene despite the agreement of

the debtor and creditor to the contrary, as it was found by the lower court that the

agreement had been ‘fraudulent’); Civ. 29 May 1953, D 1953.516 (where the third

party had an interest in intervening and the parties no legitimate interest in

refusing intervention). 22 Issa-Sayegh, ‘Extinction’, 10, citing Aubry and Rau, Cours de droit civil franc¸ais, no. 316,

221, n. 2 (who disagree with Pothier in this respect on the basis that article 1236

does not so restrict third-party paiement). 23 Cf. Pothier, Traite des obligations ´ , no. 500, who does indeed refer to putting the

creditor en demeure. On the rejection of this idea in the modern law, see Terre, Simler ´

and Lequette, Les obligations, 1004, n. 1 noting the contrary position in German law

found in § 293 BGB. For criticism of this rejection, see C. Robin, ‘La mora creditoris’,

[1998] Review trimestrielle de droit civil 607. 24 This procedure is known as ‘offres reelles avec consignation’ and is provided for by ´

arts. 1257–8 code civil and arts. 1426 ff., Nouveau code de procedure civile ´ . 25 Art. 1257 al. 1, code civil. According to Henri, Leon and Jean Mazeaud, ´ Lec¸ons de droit

civil, vol. II/1, Obligations, theorie g ´ en´ erale ´ (8th edn by Franc¸ois Chabas, 1991), 954, n. 3

following J. Courrouy, ‘La consignation d’une somme d’argent est-elle un payement?’

[1990] Review trimestrielle de droit civil 23, even after consignation and court approval, the

debtor’s discharge does not mean that there is paiement nor is there therefore an end

to the relationship of obligation between the parties. 26 Terre, Simler and Lequette, ´ Les obligations, 1004.

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performance of another’s obligation 439

party would prevent any attempt to enforce performance against the

debtor.27

3. The ‘liberating effect’ of performance and recourse by the third

party

Article 1236 sets out the ‘liberating effect’ of third-party performance, an

issue which in French law is intimately related to the question of recourse

by the third party. In the following discussion it should be recalled that

there is no general requirement that any of the paiements in question be

effected with the debtor’s consent: instead, the primary distinction is bet￾ween performance by a third party with or without an interest in doing so.

(a) Performance by interested third parties

Where the third party whose performance is accepted by the creditor has

an interest in so acting, then the debtor is discharged vis-a-vis ` the creditor,

but not vis-a-vis ` the third party, who is subrogated by operation of law into

the legal position of the creditor.28 French law therefore uses the idea of

relative discharge to reconcile the third party’s intention to discharge the

debtor, the creditor’s satisfaction and the technique of subrogation. Arti￾cle 1236 gives two examples of such an interest: where the third party

is jointly obligated with the debtor and where he is the debtor’s surety

(caution). As to the latter, it is to be noted that a surety who performs the

obligation for the debtor (typically, but not exclusively, by paying a sum of

money) may recover from and is subrogated to the creditor’s rights against

the debtor whether or not the surety entered the contract of suretyship

at the request of the principal debtor.29 However, the form of article 1236

makes clear that a third party may have an interest in performing an￾other’s obligation, even where he is not himself a joint debtor or surety.

A common example of this in French practice is the situation where A

27 Such a denial could be based on the idea that a creditor’s failure to accept tender of

due performance would constitute breach of his obligation de loyaute´ and that this

breach would mean that the creditor would not be allowed to terminate the contract

for non-performance, nor to rely on the debtor’s own non-performance as a defence

(the exception d’inexecution ´ ) nor recover damages: see Robin, ‘La mora creditoris’,

611–12, 625 ff. 28 Subrogation by operation of law is known as subrogation legale ´ . Subrogation may also

take place by agreement, this being known as subrogation conventionnelle. 29 Arts. 2028 al. 1 and 2029, code civil. Where joint debtors are liable solidairement (i.e.

jointly and severally), payment in full by one gives rise to a right of recourse against

the others to the limits of their own part share: art. 1214, code civil.

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buys from B property that is subject to a mortgage or lien owed by B to

C: here, A has an interest in paying the debt owed by B to C so as to avoid

the threat of dispossession by C.30

The technique of subrogation has both advantages and disadvantages

from the point of view of the third party.31 The main advantage is that

he may take advantage of any security which the creditor enjoyed in re￾lation to performance of the obligation; but the disadvantages include

the possibility of being met with a defence or right of set-off which the

debtor enjoyed against the creditor and the possibility of the right expiring

according to the prescription period applicable to the creditor’s claim.32

This being the case, it is interesting that French law at times allows a third

party who possesses a subrogated claim also to have recourse against the

debtor on the basis of his own independent right. This is the case with

sureties, whose claims arise simply on payment and without any need to

satisfy the conditions of gestion d’affaires or enrichissement sans cause.

33

(b) Performance by non-interested third parties

As regards performance by non-interested third parties, the position has

proved more controversial and remains more complex. Article 1236 itself

distinguishes here between those third parties who perform ‘in the name

of and to discharge the debtor’ (au nom et en l’acquit du debiteur ´ ) and those

who perform to discharge the debtor but in their own name:34 the former

are to benefit from subrogation to the creditor’s rights against the debtor

by operation of law and so their performance in general discharges the

debtor vis-a-vis ` the creditor, but not vis-a-vis ` the third party. Article 1236

also provides that performance by a third party to discharge the debtor but

in the third party’s own name will discharge the debtor, but will not give

rise to any subrogation to the creditor’s rights: here, then, the original

obligation is entirely extinguished. However, in order for even relative

discharge to occur, the third party must perform out of his own resources

30 A lien (droit de retention ´ ) has been held opposable against third parties even if they are

not themselves liable on the debt: Civ. (1) 7 Jan. 1992, Bull. Civ. I, no. 4, 3. 31 Starck, Roland and Boyer, Regime g ´ en´ eral ´ , 41 ff. 32 M. Cabrillac and Ch. Mouly, Droit des suret ˆ es´ (3rd edn, 1995), 195. 33 Ibid., 195 and see Civ. 25 Nov. 1891, DP 1892.1.261. 34 Two further situations are not dealt with in the text. First, where a third party pays

another’s (false) debt, thinking the debt genuine, the third party may recover his

paiement from the creditor as being undue: arts. 1235 al. 1 and 1376, code civil.

Secondly, where a third party pays another’s (true) debt in his own name thinking

himself the debtor (which he is not), then he may not recover against the true debtor

(see Whittaker, ‘Obligations’, 411 and cases there cited), but he may recover from the

creditor: Starck, Roland and Boyer, Regime g ´ en´ eral ´ , 128.

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performance of another’s obligation 441

(de ses propres derniers), a condition which arises in the context of payments

in money. Thus, if a third party purports to pay a debtor’s debt out of his

own funds, but is found to have paid out of the creditor’s funds, then the

obligation is not discharged.35

However, the terms of article 1236 do not give a complete picture of the

modern law.

First, French lawyers do not consider that article 1236 prevents the

effectiveness of an express condition that on performance for the debtor a

third party is to be subrogated to the creditor’s rights:36 such a subrogation

conventionelle leads to the same position as does subrogation by operation of

law, the debtor being discharged only vis-a-vis ` the creditor and remaining

bound to the original obligation to the third party.

Secondly, quite apart from any subrogated rights, a third party in this

situation may have an independent right of recourse against the debtor.

In this respect, there has recently been a fluctuation in the attitude of the

Cour de cassation. The traditional view was that third-party performance

could give rise to a right of recourse if an independent ground for such a

right could be established on the facts, notably by way of mandat (if the per￾formance was authorised by the debtor), gestion d’affaires or enrichissement

sans cause (if the performance was not so authorised).37 However, in 1990

the Cour de cassation took a radical departure and declared that where a

third party knowingly pays another’s debt out of his own resources without

being bound to do so, the sole fact of paiement gives rise to an independent

right of recourse.38 This jurisprudence was the subject of much juristic

criticism: quite apart from other considerations, the mere discharge of the

debtor in these circumstances clearly cannot always allow the third party

to recover, for the latter may have acted from a spirit of generosity to

the debtor, which should clearly rule it out.39 More importantly, the new

approach allowed recovery in situations where the conditions of gestion

d’affaires or enrichissement sans cause were not satisfied, but these conditions

35 Issa-Sayegh, ‘Extinction’, no. 62, 11, citing Com. 14 Nov. 1975, D 1976 IR 26. 36 Aubry and Rau, Cours de droit civil franc¸ais, 222, n. 9; art. 1250 al. 1, code civil provides

that subrogation conventionelle must be expressly provided for and made at the same

time as performance of the debtor’s obligation. 37 Aubry and Rau, Cours de droit civil franc¸ais, 220; M. Planiol and G. Ripert, Traite pratique ´

de droit civil franc¸ais, vol. VII, Obligations (2nd edn, 1954), 552. Paiement may also be

made to the creditor under a contract between the debtor and the third party such

as insurance. 38 Civ. (1) 15 May 1990, JCP 1991.II.21628, note Bruno Petit; D 1991.538, note

G. Virassamy. 39 Petit, JCP 1991.II.21628, 36.

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should be retained as they encapsulate a fair and proper balance of the

interests of the parties in question and their avoidance sacrifices the inter￾ests of the debtor.40 Perhaps in response to these criticisms, only two years

later, the Cour de cassation changed its mind and implicitly returned to

the traditional position.41 In this case, the claimant had paid the ‘resi￾dence tax’ of his handicapped stepdaughter who lived with him over a

period. After her death, he claimed to be reimbursed for these sums from

her estate. The Cour de cassation declared that ‘it is for a person who has

knowingly discharged another person’s debt without being subrogated to

the creditor’s rights, to show that the cause from which this payment

arises implies for the debtor an obligation to reimburse the payer in re￾spect of sums paid’. This being the case, the lower court was entitled to

reject the claimant’s claim on the ground that he had not established

on what basis he had paid the tax. Subsequent decisions of the Cour de

cassation have taken the same line.42

What then is the present position? Clearly, where a third party performs

in order to discharge the debtor out of a spirit of generosity, then he can￾not later change his mind and claim reimbursement from the debtor,

and the form of the 1992 judgment suggests that it will be for a third

party to show that it was not done out of a sense of philanthropy to the

debtor.43 This rule holds good whether or not the performance was ef￾fected in the third party’s own name or the debtor’s. It is also clear that

this change in approach by the courts does not threaten the established in￾dependent claims of interested third-party performers, such as the surety,

for in such a case the relationship of suretyship itself constitutes the cause

from which his performance arises, even if the suretyship was undertaken

against the principal debtor’s wishes.44

Beyond this, a distinction should be made on the basis of whether or

not the third party’s performance was authorised by the debtor.

If performance is rendered in the name of the debtor and with his au￾thority, then a contract of mandat arises between them,45 with a resulting

right of reimbursement in the third party as the debtor’s mandatory.46 On

the other hand, if the debtor did not give any authority for the third party

to act in his name and perform his obligation or if the third party did

not act in the debtor’s name (even though he acted in order to discharge

40 Cf. Ibid., 37. 41 Civ. (1) 2 Jun. 1992, D 1992 Somm. 407, note Philippe Delebecque. 42 Civ. (1) 23 Feb. 1999, pourvoi no. 95-18.860 (unreported). 43 Delebecque D 1992 Somm. 407. 44 Cabrillac and Mouly, Droit des suret ˆ es´ , 194. 45 Art. 1984, code civil. 46 Art. 1999, code civil.

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performance of another’s obligation 443

him), then the third party may be able to recover on the basis of gestion

d’affaires or, if not, enrichissement sans cause.

47

For a right of recourse to arise in the third party as the debtor’s gerant ´

d’affaires48 there are two conditions that are particularly significant in

this context:49 first, gestion d’affaires arises only when the third party’s per￾formance is ‘useful’ (utile) to the debtor, a condition which is placed in

the ‘sovereign power of assessment’ of the lower courts. Now, it may be

thought that the performance of another’s obligation is always ‘useful’ to

him, but it may not be, for by being liable to the third party directly and

independently of the original obligation, the debtor may lose the bene￾fit of any defences which he might have possessed against the original

creditor: in such a circumstance it would not be useful for a third party

to perform to the prejudice of the debtor.50 It is on this ground also that

it is rare for gestion d’affaires to be successfully invoked by a bank who

pays a debt of a third party for which the bank no longer had a mandate,

since intervention by a bank in such a situation contradicts the principle

against conducting a client’s affairs without authority.51 Secondly, while

47 Again, in the case of payment in money this assumes that the third party paid from

his own resources. In this respect, the presumption is that a person who pays in his

own name does so from his own resources, but this presumption may be rebutted.

Thus, if the court finds that the third party paid with the debtor’s own resources,

clearly he cannot be reimbursed: Req 18 Feb. 1901, DP 1901.1.303. 48 Art. 1375, code civil. For an early application of gestion d’affaires in this context, see Civ.

8 Jan. 1862, DP 1863.1.75. For an introduction to gestion d’affaires in English, see

Whittaker, ‘Obligations’, 403–6. 49 Gestion d’affaires may arise whether or not the gerant ´ acts in the name of the maˆıtre

d’affaires, though if he acts in his own name in entering legal transactions with third

parties, any recourse of the latter is in principle available only against the gerant ´

(unauthorised manager) and not the maˆıtre d’affaires: J. Flour and J.-L. Aubert, Les

obligations, vol. II, Le fait juridique (6th edn, 1994), no. 17, 22. Tribunal de grande

instance, Strasbourg, 9 July 1954, GP 1954.2.350 is an example of its application,

where no mention is made of whether the performance was or was not made in the

debtor’s name. Cf. Issy-Sayegh, ‘Extinction’, no. 67, 12 and Starck, Roland and Boyer,

Regime g ´ en´ eral ´ , 63, who both assert that performance by a third party other than in

the name of the debtor can give rise to recovery only on the basis of enrichissement

sans cause. 50 Cf. Virassamy, D 1991.538, 541 and M. Billiau obs. JCP 1992.I.3632, no. 6 who criticise

the position there taken by the Cour de cassation on the ground that this issue is

thereby avoided. The issue of utility is judged from the point of view of the would-be

gerant ´ to whom intervention must appear to be useful: B. Starck, H. Roland and

L. Boyer, Droit civil, Les obligations, vol. I, Le contrat (6th edn, 1998), 750; Flour and

Aubert, Le fait juridique, 16. 51 Ph. Derouin, ‘Le paiement de la dette d’autrui, Rep´ etition de l’indu et enrichissement ´

sans cause’, D 1990 Chron. 1.

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gestion d’affaires does not rest on any authority in the debtor, in French

law it will not arise if the debtor has made clear his lack of consent52 as

long as this is deemed to be legitimate.53

Recovery by the third party on the basis of enrichissement sans cause is

possible where the conditions of neither mandat nor gestion d’affaires are

fulfilled.54 An example may be found in a decision of the Cour de cassation

in 1984 in which the former husband of a child’s mother had paid her

maintenance in respect of the child’s upkeep after divorce.55 After the

child’s mother and natural father obtained the child’s legitimation (the

effect of which was retroactive), the former husband successfully sued

the child’s natural father on the ground that his payments to the mother

enriched the natural father sans cause, since his own obligation to main￾tain the child had been retroactively put to an end on legitimation. Of

the conditions for recovery on the ground of enrichissement sans cause,

56

the most significant hurdle in the context of performance of another’s

obligation appears to be that the performance was made without fault on

the part of the third party.57 In common with the position more generally,

a distinction is to be drawn here between a third party who acts in bad

faith (notably where his intervention constitutes a deliberate breach of an

applicable rule58) and where he acts merely negligently.59

52 Malaurie and Aynes, ` Droit civil, Les obligations, 530 (concerning gestion d’affaires

generally) and Com. 21 Nov. 1978, Bull. Civ. IV no. 271, 223 (where the lack of consent

stemmed from a prior contract term between the debtor and the third party). 53 A. Benabent, ´ Droit civil, Les obligations (4th edn, 1994), 217. An example of a refusal

being illegitimate may be found in Civ. (1) 11 Feb. 1986, GP 1986.2, Somm. 507, note

A. Piedeli ´ evre in which a son paid the monthly installments of his father’s loan, `

despite the father’s opposition; the court accepted that this was a case of gestion

d’affaires, for the father’s opposition was not justified by the family’s interest. 54 The principle of the subsidiarity of the action de in rem verso rules it out only where

the law provides an effective remedy or where such a remedy is barred by a legal

obstacle: Whittaker, ‘Obligations’, 416–17. 55 Civ. (1) 1 Feb. 1984, D 1984.388. It is to be noted that the subsidiary nature of the

action de in rem verso did not prevent the former husband’s recovery, despite his

possessing a claim for rep´ etition de l’indu ´ from his former wife (who was insolvent). 56 On which see Whittaker, ‘Obligations’, 413 ff. 57 Virassamy, D 1991.541; Petit, JCP 1991.II.21628, 37. 58 E.g. Civ. (1) 3 Apr. 1979, D 1979 IR 408 (where the third party was held to act ‘dans

son propre inter´ ˆet et a ses propres risques’). ` 59 Derouin D 1990 Chron. 1, 201–2 and see, for a general affirmation of the availability

of recovery on the basis of enrichissement sans cause despite the claimant’s negligence:

Civ. (1) 11 Mar. 1997, D 1997.407, note Marc Billiau. It would seem that the effect of

the latter decision is that the payer’s negligence does not bar recovery on the ground

of enrichissement sans cause, but this leaves the possibility of set-off by the debtor on

the ground of a claim for delictual fault based on the third party’s negligence under

art. 1382, code civil (on this in general terms, see Billiau, ibid., 409).