Non-compliance in France: a practical and legal guide by a lawyer, for businesses and entrepreneurs
Understand everything about non-compliance in commercial contract law and litigation: definition, examples, rights, practical remedies, sample letters and legal advice for entrepreneurs and managers.
What is non-compliance? Definition and challenges
Non-compliance in commercial law refers to the discrepancy between the service performed, the good delivered or the service provided and what was provided in the contract, quotation or order validated between professionals. This concept crosses all business operations: sale of goods, works, intellectual services, subcontracting or even the delivery of finished products.
Non-conformity is distinguished from simple defect or non-quality, which refer to problems of absence or reduction in value, where non-compliance is primarily concerned with strict compliance with the order, the specifications or the contractual specifications.
Educational example:
You order 500 blue chairs for your offices, the delivery includes 480 blue chairs and 20 red chairs. This is a clear non-conformity: even if the red chairs are of good quality, they do not correspond to the order.
The control of contractual non-compliance makes it possible to anticipate your commercial risks, to secure your transactions, and to quickly activate remedies in the event of a dispute.
Types and nature of non-compliance
• Non-conformity of goods or products: product delivered that does not correspond to the order or to the specifications.
• Non-conformity of works or services: service performed differently from the forecasts in the estimate or contract.
• Contractual non-compliance: discrepancies between what is stipulated in the contract and what is actually achieved.
Educational framework:
The consequences of non-compliance can range from the simple resumption of work to the cancellation of contracts and compensation for damages.
The different types of non-conformity and non-quality
Practitioners and judges generally distinguish between three main forms of non-quality:
1. Non-compliance: Difference between product/service and the contract, as seen above.
2. Quality defect or hidden defect: Product delivered in conformity in appearance but with a defect that makes it unfit for use.
3. Non-performance: Total or partial non-performance of the service or delivery.
Table: The three types of non-quality
Product non-conformity: definition and control tools
Product non-conformity applies to any good or merchandise that is presented as complying with a specification, specification, or contractual standard, but which, upon delivery or subsequent discovery, reveals a deviation from these requirements.
Practical case:
An SME orders 200 computers configured with 16GB of RAM; upon delivery, 50 computers have only 8GB of RAM. Non-conformity is perfectly characterized here.
Preventive measures:
• Request a technical sheet signed in advance.
• Specify the methods of quality control in the sales contract.
• Impose penalties or refusal of payment in case of proven non-compliance.
Legal and economic consequences of non-compliance
The consequences for the company depend on the severity and nature of the non-compliance, but also on the drafting of the contractual clauses.
• Suspension or refusal of payment: In the event of obvious non-compliance, the customer may legitimately suspend all or part of the payment.
• Obligation to redo or replace the service: The service provider or seller must take care of the takeover at his own expense.
• Contract resolution and compensation: Depending on the severity, the buyer may request the cancellation of the contract and compensation for any damages suffered.
• Civil and judicial liability: The exposed company may be sued before the commercial court.
Standard non-compliance clause:
Jurisprudential framework: Judges have a sovereign appreciation of the seriousness of the non-compliance and can award damages even in the absence of an express clause if harm is established.
Non-compliance of the work with the estimate: rights and actions
In the construction sector or during intellectual services, the non-conformity of the work refers to the discrepancy between the accepted estimate and the actual completion of the site or service.
Concrete example:
A contractor ordered the renovation of his offices with an estimate providing for satin white paint. At the end of the work, the walls are painted matt: this is a non-compliance.
Actions to be taken:
• Bailiff's report or expertise to establish non-compliance.
• Formal notice to the service provider to resume the work.
• Suspension of payments until regularization.
Sample letter of formal notice for non-compliant work:
The rights of the buyer in case of non-conforming goods
In the event of non-compliant goods between professionals, the law and case law effectively protect the buyer, in particular under articles 1604 and following of the Civil Code:
• Receiving subject to reservation: Always express reservations upon delivery, even if the non-compliance is not immediately apparent.
• Right to replacement or refund: The buyer can request replacement, recovery or total or partial reimbursement.
• Legal action: If the seller refuses to regularize, the buyer can go to the competent court to obtain the execution or resolution of the contract and compensation.
Real example:
A food distribution company receives labelled organic products, even though the certificates do not comply: it notifies the non-compliance and obtains, after formal notice, reimbursement and penalties for disrupting the supply chain.
Remedies in case of non-compliance: procedure and best practices
Faced with a situation of non-conformity of works, products or services, it is imperative to act quickly and methodically.
Recommended steps:
1. Document non-compliance (photos, reports, written complaints, bailiff's reports)
2. Formal formal notice to the counterparty, specifying differences and expectations
3. Suspension of payments in case of blocking
4. Amicable negotiation (always preferred in B2B)
5. Judicial appeal (summons before the commercial court)
Practical box:
In the presence of quality control clauses, require their application. Consider including reporting and audit requirements in all of your major contracts.
FAQ: All answers to questions about non-compliance
What is the definition of non-compliance?
Non-conformity is the discrepancy observed between the product or service delivered and the contractual expectations set out in the contract, quotation or order.
What are the 3 types of non-quality?
• Non-compliance
• Hidden defect
• Non-performance
(see comparison table above)
What is a non-compliant product?
A non-compliant product is a product delivered that does not correspond to the description, technical characteristics or standards of the validated order.
What are your rights in case of non-compliant goods?
You can demand replacement, reimbursement, trade-in, repairs, cancellation of the contract, or compensation for damages.
What is a product non-conformity?
It is the failure of a product to correspond to the requirements of the contract or order, revealed during delivery or use.
What could be the consequences in the event of non-compliance?
• Delayed or suspended payment
• Obligation to replace or repair
• Contract resolution
• Indemnities for harm suffered
• Reputational and civil risk for the supplier
What to do when the work is not in accordance with the estimate?
It is necessary to:
• Gather evidence of non-compliance
• Give notice to the service provider to regularize
• Call on an expert or a bailiff
• Suspend payments
• Consider legal action as a last resort
What is non-compliance on a construction site?
This is a discrepancy between the implementation and the quote/contract, which may relate to materials, finishes or technical specifications.
How to report poorly done work?
Have a bailiff's report drawn up or seek a judicial expert; photograph defects; keep written documentation; formally notify the service provider.
Recently, lawyers have also been able to make certain observations personally using an application.
Recourse for non-compliance with works?
• Formal notice
• Amicable negotiation
• Legal action
• Request for expertise
• Contract resolution and compensation
Non-compliant merchandise between professionals?
Even in B2B, non-compliance leads to the right to compliant performance, resolution, recovery, reimbursement or compensation, depending on the clauses and severity.
Sample letter of formal notice for non-compliant work
See above in the “Non-compliance of the work with the specifications” section.
Special points of vigilance for entrepreneurs and managers
Non-compliance is a regulated, complex and evolving matter. Only the support of a specialized lawyer makes it possible to anticipate risks, negotiate remedies, draft effective clauses and choose the best procedure in the event of litigation. Remember to seek advice for any contractual negotiation or dispute concerning the non-conformity of products, services or works.
Conclusion: Integrating non-compliance control into business management
Non-compliance is not inevitable: it is a risk that must be controlled through contractual prevention, vigilance in the reception of products and works, and reactivity in the event of a dispute. Companies that are well supported, trained and rigorous in procedures drastically limit their losses and enhance their professional image.
Article written by Guillaume Leclerc, lawyer in commercial contracts and commercial litigation in Paris.
