Late delivery in France: the buyer's remedies for late or non-delivery

When a French seller delivers late or not at all

Delivery is the seller's core obligation in a French sale of goods, and it must be performed within the time the parties agreed. Article 1610 of the Civil Code states that where the seller fails to deliver within the agreed time, the buyer may choose between having the sale terminated and being put into possession of the goods, where the delay is attributable to the seller alone. A missed date is therefore not a mere inconvenience: it is a breach of contract that opens a defined set of remedies. The question of late delivery in France is, at heart, a question of which of those remedies fits the buyer's commercial situation.

The starting point is the delivery date itself. Where the contract fixes a firm date — especially one written in bold as a fixed commitment — the courts treat timely delivery as an obligation of result, so the seller is liable on proof of the delay alone, without the buyer having to show fault. Where no date is stated, the seller must deliver within a reasonable time judged against trade usage and the purpose of the contract, and must warn the buyer of any unforeseen delay. In every case the burden of proving that delivery was made on time rests on the seller, not on the buyer.

It is worth separating two situations that attract the same remedies but differ in degree. Non-delivery is a total failure: the goods never arrive, or the seller makes clear they will not be supplied. Late delivery is a delay in performance that may or may not still be curable. Both are governed by Article 1610 and by the general law of non-performance, but the gravity of the failure — a point we return to below — often decides whether the buyer can walk away or must be content with damages. A short delay in non-perishable goods is treated very differently from a delay that defeats the whole purpose of the purchase.

Putting the seller on notice (mise en demeure) and its effects

Before most remedies for late delivery can be deployed, the buyer must put the seller on notice — the mise en demeure. Under Article 1344 of the Civil Code the debtor of an obligation is placed on notice either by a formal demand or by any act that gives sufficient warning that performance is required. In practice this is a dated written demand to deliver, sent by registered letter or by a commissaire de justice, identifying the goods, recalling the agreed date and calling for delivery within a stated, reasonable period. It converts a passive delay into a documented default and starts the clock on the buyer's rights.

The notice is not an empty formality; it produces concrete legal effects. It fixes the point from which delay damages and interest run, it evidences that the buyer treated the delay as a breach rather than acquiescing in it, and — as discussed below — it can move the risk of accidental loss onto the seller. The courts take the requirement seriously in both directions: a buyer who simply cancels an order because the goods were late, without sending the notice the contract required, has itself been held liable. Sending a clear notice first is what preserves the buyer's position.

There are limited situations where a notice adds nothing — for instance where the seller has already declared that it will not or cannot deliver, or where the contract makes the date itself the essence of the deal. Even then, a buyer intending to terminate or to make a replacement purchase is well advised to document the seller's position in writing. A precise notice that grants a realistic deadline is also the safest foundation for a later unilateral termination, because it shows a court that the seller was given a fair chance to cure the default before the buyer acted.

The buyer's options: forced delivery, termination and damages

Once the seller is on notice and still has not delivered, the buyer has a menu of remedies rather than a single route. The first is forced performance in kind: the buyer can ask a court to order delivery, if necessary under a periodic penalty (astreinte) that grows for each day of continued default. The delivery obligation is not one that dissolves automatically into damages; it can be compelled in nature, and a seller cannot escape an order to deliver merely by offering money instead. Forced delivery is the natural choice where the goods are still wanted and no equivalent substitute is available.

Where performance in kind is no longer possible or no longer useful, the buyer can move to price-based and money remedies. It may seek a proportional reduction of the price for an incomplete or imperfect delivery, and in commercial matters the court has a power of réfaction, allowing it to cut the price where the seller's failure is not serious enough to justify ending the contract. Alongside these, the buyer can always claim damages for the loss the late delivery caused — for example a loss suffered on a resale, or extra costs incurred to keep its own operations running. Damages can be set off against any part of the price that remains due.

The third route is to end the contract altogether, which we examine in the next section. Choosing between these remedies is a commercial as much as a legal decision: forcing delivery keeps the deal alive but may be slow; termination frees the buyer to source elsewhere but must clear a seriousness threshold; damages and price reduction compensate without breaking the relationship. Many buyers combine them — for instance terminating and then claiming damages for the additional cost of covering the shortfall. Our note on the buyer's remedies for non-conforming goods explains how the same toolkit applies where the problem is defective rather than late delivery.

Terminating for late delivery at the creditor's risk (Article 1226)

French law offers three ways to bring a sale to an end for the seller's breach, and Article 1224 of the Civil Code gathers them together: termination may follow from a resolutory clause in the contract, from a notice given by the creditor where the non-performance is sufficiently serious, or from a court decision. For a buyer facing late delivery, the choice between going to court and acting by notice shapes the whole strategy, because each route carries a different balance of speed and risk.

Article 1226 allows the buyer to terminate unilaterally, by written notice, at its own risk. The buyer must first put the seller on notice to perform within a reasonable time, the notice must state that the buyer will treat the contract as terminated if the default continues, and the termination itself must set out the reasons. The phrase at the creditor's risk is the sting: the seller can later challenge the termination in court, and if a judge finds the delay was not serious enough, the buyer will be treated as having wrongfully ended the contract. This is why the seriousness of the failure is the decisive question.

A simple delay in delivering non-perishable goods will often not be serious enough to support unilateral termination — in which case the buyer is left with damages rather than an exit. By contrast, a delay that destroys the commercial purpose of the purchase, a delay in perishable goods, or an outright refusal to deliver will usually cross the threshold. A resolutory clause tailored to delivery dates is the most predictable option, since it defines in advance which breach triggers termination and after what notice. Where the stakes are high and the seriousness is contested, judicial termination — slower but authoritative — remains available and shifts the assessment of gravity onto the court.

Who bears the risk of loss during a delivery delay

A delay raises a separate and often overlooked question: if the goods are accidentally destroyed while the seller is late, who bears that loss? Under the default French rule the risk of loss follows ownership, and in a sale ownership usually passes on agreement, so risk can sit with the buyer even before the goods are delivered. Until delivery, however, the seller keeps custody of the goods and must preserve them, remaining answerable for loss caused by its own fault. The interaction of these rules matters most precisely when the seller is running late.

This is where the formal notice does double duty. Article 1344-2 of the Civil Code provides that a notice to deliver a thing places the risk of that thing on the debtor, if it is not already there. In other words, once the buyer serves a mise en demeure to deliver, the risk of accidental loss during the continuing delay is thrown back onto the seller. A buyer who has served notice and whose goods are then destroyed before delivery is therefore in a far stronger position than one who has waited passively — another reason the notice is the pivotal step in any late-delivery dispute.

The parties can and often do rearrange these rules by contract. Tying the transfer of risk to physical delivery, or adopting an Incoterm, changes who carries the danger of loss in transit and can override the ownership-based default. Where an Incoterm is used, the delivery point it fixes governs the moment risk passes, independently of when title moves. For cross-border sales into or out of France, aligning the risk clause, the Incoterm and the delivery date is what prevents a delay from turning into an argument about who insures the goods.

The replacement purchase (faculté de remplacement) in commercial sales

Commercial buyers of generic goods enjoy a practical self-help remedy that is well suited to late delivery: the faculté de remplacement. Under a long-standing commercial rule, a buyer of goods defined by type — grain, oil, raw materials and the like — who is not delivered at the agreed time may buy equivalent goods from another supplier and recover the extra cost from the defaulting commercial seller. Unlike the general self-help remedy of the Civil Code, which normally requires prior court authorisation, this commercial replacement can be carried out without going to a judge first, which is what makes it valuable to a business that needs the goods now.

The remedy comes with conditions. The buyer must first serve a mise en demeure to deliver, unless the seller has already announced that it will not perform. The replacement goods must be bought on ordinary market terms — the buyer cannot invent a price — although it need not buy on the same marketplace or at the exact moment delivery was due, and may buy later and at a higher price if the market has moved. A prudent buyer has the quantity, quality and price of the substitute goods verified, so that the extra cost it later claims cannot be disputed. The remedy does not extend to a specific, individualised item such as a particular identified machine, which cannot be replaced fungibly.

What the buyer recovers is the difference between the original contract price and the price of the substitute goods, measured at the date the buyer becomes certain that delivery will not be made — typically the moment the seller refuses to deliver except at a higher price, or fails to respond to a summons to deliver. Where the buyer had itself committed to resell the goods and had to cover at a higher price without being able to pass on the increase, the recoverable supplement can include that lost margin. Used correctly, the replacement purchase lets a buyer keep its own supply chain running while leaving the seller to bear the cost of its default.

Penalty and late-delivery interest clauses

Rather than litigate the loss caused by each delay, many sale contracts pre-agree it through a penalty clause. Article 1231-5 of the Civil Code gives effect to the clause pénale: where the contract fixes a sum payable by the party that fails to perform, that sum is owed to the other party without proof of the actual loss. For late delivery this typically takes the form of delay penalties — a fixed amount per day or per week of lateness — which give the buyer a predictable, easily enforced entitlement and give the seller a clear incentive to perform on time.

The penalty is not beyond control. Under Article 1231-5 a court may reduce a penalty that is manifestly excessive, or increase one that is manifestly derisory, and it may reduce the agreed sum proportionally where the obligation has been performed in part. This judicial power cannot be excluded by the parties, so a delay penalty set at a punitive level risks being cut back, while a token penalty may be topped up. A workable clause therefore sets a figure that reflects a credible estimate of the delay loss, and states clearly whether it is the buyer's sole remedy or comes on top of the right to terminate and claim further damages.

Delay penalties also interact with the buyer's other options. As a rule the penalty replaces general delay damages for the period it covers, so a buyer usually cannot claim both the agreed penalty and separately proven delay losses for the same delay unless the contract says so. Where the contract is silent, a buyer is often better served by combining a firm-date clause, a delay penalty and a resolutory clause, so that a persistent delay first triggers the penalty and, if it continues, allows termination. Our note on penalty clauses looks at how these clauses are drafted and controlled in more detail.

Force majeure as the seller's defence, and how to respond to a delay

The seller's main answer to a late-delivery claim is that performance was prevented by an event outside its control. Where delivery becomes impossible because the goods are lost through a fortuitous event, the matter is governed by the law of risk rather than by fault, and the seller may be excused. The burden of proof, however, lies on the party invoking the excuse: a seller who had custody of the goods until delivery must prove the fortuitous event in order to escape its obligation. A mere commercial or financial difficulty — a decision to stop making the product, for instance — does not release the seller.

This defence has limits that favour the buyer. A seller who has served no warning of the delay, or who has already been placed on notice to deliver, will find it harder to shelter behind an external event, because the notice can already have shifted the risk under Article 1344-2. Where the disruption is temporary, the usual consequence is suspension of the obligation rather than outright release, so the delivery duty revives once the impediment passes. Contract clauses on force majeure and hardship should be read carefully to see whether they widen or narrow these default positions — our note on force majeure and hardship addresses that interaction.

Faced with late delivery, a buyer should act in a deliberate sequence rather than reacting in the heat of the moment. Moving too fast — cancelling or refusing before notice — can reverse the roles and put the buyer in breach, while waiting too long can look like acceptance of the delay and can leave a claim to run up against the ordinary five-year limitation period. The steps below set out a defensible order of response that keeps every remedy open.

Frequently asked questions about late delivery in France

What can I do if the seller delivers late in France?

Article 1610 of the Civil Code lets you either force delivery or terminate the sale where the delay is due to the seller, and in every case claim damages for your loss. In practice you first serve a formal notice to deliver, then choose between forced delivery, a replacement purchase, a price reduction or termination depending on how serious the delay is.

Can I cancel the contract for late delivery?

Yes, but not automatically. You can terminate under a resolutory clause, by notice at your own risk under Article 1226, or by court decision under Article 1224. A short delay in non-perishable goods is often not serious enough to justify unilateral termination, so you may be left with damages unless the delay defeats the purpose of the purchase.

Can I buy replacement goods and charge the seller?

In a commercial sale of generic goods you can use the faculté de remplacement: after serving a notice to deliver, buy equivalent goods from another supplier and recover the price difference from the seller, without needing prior court authorisation. The substitute goods must be bought at ordinary market prices, and the remedy does not apply to a specific, individualised item.

Who bears the risk of loss during a delivery delay?

By default risk follows ownership, which usually passes on agreement, but Article 1344-2 provides that a notice to deliver places the risk of the goods on the seller if it is not already there. So once you serve a mise en demeure to deliver, the seller bears the risk of accidental loss during the continuing delay.

Does a penalty clause apply to late delivery?

It does if the contract contains one. Under Article 1231-5 a delay penalty is owed without proof of actual loss, but a court can reduce a manifestly excessive penalty or increase a derisory one, and can cut it proportionally for partial performance. The penalty generally replaces separately proven delay damages for the same period unless the contract states otherwise.

Do I have to send a formal notice before terminating?

In most cases yes. A mise en demeure to deliver within a reasonable time is the step that documents the default and preserves your remedies, and unilateral termination under Article 1226 normally requires it. Acting without the required notice — cancelling or refusing the goods too early — can make you the party in breach.

Can the seller avoid liability by invoking force majeure?

Only within limits. A seller may be excused where delivery becomes impossible through a genuine fortuitous event, but it bears the burden of proving that event, and ordinary commercial difficulties do not qualify. A temporary impediment usually suspends rather than ends the delivery obligation, and a seller already placed on notice will find the defence harder to run.

Key takeaways on late delivery in France

How our French lawyers help with late delivery disputes

Petroff Avocats advises both buyers and sellers on late and non-delivery under French law. For buyers, we draft and serve the formal notice, assess whether the delay is serious enough to terminate, organise a compliant replacement purchase, quantify damages and delay penalties, and take the matter to the commercial court where forced delivery or termination is contested. For sellers, we assess exposure to delay claims and penalty clauses, advise on force majeure and risk defences, and negotiate to contain the consequences of a delay. We also review and draft delivery-date, penalty, risk-transfer and resolutory clauses so that a future delay is handled by the contract rather than by litigation.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. French law on the sale of goods depends on the facts of each contract and on how the courts apply it. Contact our French lawyers for advice on your situation.