P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 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 Ayn ` es, Droit civil, Les obligations, 559. 17 Below, 439 ff. 18 J. Issa-Sayegh, ‘Extinction des obligations, Paiement: Caract ` eres 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. P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 438 simon whittaker 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 byathird 21 Issa-Sayegh, ‘Extinction’, 10; B. Starck, H. Roland and L. Boyer, Droit civil, Les obligations, vol. III, R ´ egime 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, Trait ´ e 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 Terr ´ e, 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 r ´ eelles avec consignation’ and is provided for by arts. 1257–8 code civil and arts. 1426 ff., Nouveau code de proc ´ edure civile. 25 Art. 1257 al. 1, code civil. According to Henri, L ´ eon and Jean Mazeaud, Lec¸ons de droit civil, vol. II/1, Obligations, th ´ eorie 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 Terr ´ e, Simler and Lequette, Les obligations, 1004. P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 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 loyaut ´ e 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’inex ´ ecution) nor recover damages: see Robin, ‘La mora creditoris’, 611–12, 625 ff. 28 Subrogation by operation of law is known as subrogation l ´ egale. 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. P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 440 simon whittaker 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 d ´ ebiteur) 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 r ´ etention) 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, R ´ egime g ´ en ´ eral,41ff. 32 M. Cabrillac and Ch. Mouly, Droit des s ˆ uret ´ 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, R ´ egime g ´ en ´ eral, 128. P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 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, Trait ´ e 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. P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 442 simon whittaker 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 s ˆ uret ´ es, 194. 45 Art. 1984, code civil. 46 Art. 1999, code civil. P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 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 g ´ erant d’affaires 48 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 g ´ erant 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 g ´ erant (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, R ´ egime 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 g ´ erant 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, R ´ ep ´ etition de l’indu et enrichissement sans cause’, D 1990 Chron. 1. P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 444 simon whittaker 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 consent 52 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 rule 58 ) and where he acts merely negligently. 59 52 Malaurie and Ayn ` es, 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. B ´ enabent, 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. Pi ´ edeli ` 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 r ´ ep ´ 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 int ´ er ˆ et 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). P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 performance of another’s obligation 445 4. Summary of French law The French position in relation to article 1236 may therefore be sum- marised as follows. First, a creditor may not reject tender of due performance by a third party to the obligation unless the creditor has an interest in doing so or the debtor has agreed or does agree with the creditor that the third party should not perform. There are, on the other hand, no exceptions to this rule on the ground that the debtor has not authorised the third- party performance nor on the ground that the creditor considers that the debtor would be prejudiced by his acceptance of due tender. Secondly, if the creditor accepts tender of due performance by a third party, then the debtor is thereby discharged vis- ` a-vis the creditor himself. Thirdly, where the creditor accepts third-party performance, if the third party has an interest in performing or if he pays ‘in the name of and to discharge the debtor’ then, while the debtor is discharged vis- ` a-vis the creditor, he still owes the same obligation to the third party who is subrogated to the creditor’s rights. Again, there is no distinction in this respect according to whether the third party intervenes with or without the debtor’s authority. Fourthly, where the tender of performance of another’s obligation by a third party in order to discharge the debtor is accepted by the creditor, that third party will possess an independent recourse against the debtor (quite apart from any subrogated rights he may have) if he can establish a recognised legal ground for so doing whether this is mandat, some other relationship from which the performance arose (as with caution), gestion d’affaires or enrichissement sans cause. In this way, while French law does not make the debtor’s authority a condition either for discharge of an obliga- tion by the third party nor of the latter’s recovery, the debtor’s interests are by no means left unprotected. 5. The position in English law contrasted At this stage, it may be helpful to recall the position in English law, which differs significantly from its French counterpart. First, in English law the question whether a creditor of an obligation must accept tender of performance by a third party is dealt with in terms of ‘vicarious performance’. 60 In this respect, in general the creditor may not reject tender of performance by a third party who performs on behalf 60 See G. H. Treitel, The Law of Contract (10th edn, 1999), 699 ff. P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston chap-16 October 11, 2001 23:8 Char Count= 0 446 simon whittaker of the debtor and with his authority, the exceptions to this position be- ing made for the cases where the nature of the obligation is ‘personal’ in the sense that the creditor relies on the skill and judgment of the debtor and where the terms of any contract from which the obligation arises exclude performance by a third party. 61 As regards tender of perfor- mance, it may be thought that the whole notion of vicarious performance is predicated on the idea that the third party performs on behalf of the debtor and that therefore a creditor should not be required to accept tender of ‘performance’ by a third party who acts other than on behalf of the debtor. 62 This does not mean, however, that the debtor has actu- ally to have authorised the ‘purportedly vicarious performance’ at the time of tender, and there is authority which suggests that a creditor is not justified in refusing due performance if tendered on behalf of the debtor. 63 Secondly, the effect of tender of due performance in English law is in general to relieve the debtor of liabilities for failure to perform. Due tender is assimilated to performance itself and will give rise to the plea of tender as a defence to any subsequent action against him for failure to perform: there is no need in English law for a doctrine such as mora creditoris. 64 Where the obligation in question is one to pay money, then a successful plea of tender will not of itself discharge the debt, but if the creditor sues, the debtor’s payment into court and proof of continued will- ingness to pay since tender will bar any claim for interest or damages after tender. 65 Thirdly, at least as regards payment of another’s money debt, 66 where the creditor accepts tendered performance by a third party, the generally accepted position is that the debtor is discharged only if the third party acts on behalf of the debtor with the intention to discharge him and with his authority (whether actual or subsequent by ratification). 67 Exceptions to this position are made where the payment is effected under compulsion of law (that is, to avoid the threat of the legitimate application of legal 61 Ibid., 700–1. Cf. Chitty on Contracts (28th edn, 1999), §§ 20-079–20-081, which accepts the substance of this position, but does not distinguish sharply between the two. 62 Below, 447–8. 63 Read v. Goldring (1813) 2 M & S 86. 64 G. H. Treitel, Remedies for Breach of Contract, A Comparative Account (1988), 41; Chitty on Contracts, § 22-083. 65 Chitty on Contracts, § 22-084. 66 Some contend that as a matter of authority, the performance of obligations other than to pay money does discharge a debt without the authority of the debtor: A. Burrows, The Law of Restitution (1993), 223, citing Gebhardt v. Saunders [1892] 2 QB 452. 67 P. Birks, An Introduction to the Law of Restitution (revised edn, 1989), 189–90; Lord Goff of Chieveley and G. Jones, The Law of Restitution (5th edn, 1998), 16–17. [...]... at 1144L–1145A (noting the position in English law and saying ‘[i]t is not altogether clear whether the same rule applies in Scotland’) Vol XV, § 97 44 See further below, section V 45 Art 12 37 code civil; § 2 67( 1) BGB Principles, § 5 57 47 § 2 67( 2) BGB 48 Institute, Book I, Title XXIV, 1 P1: FCH/FYX P2: FCH/FYX CU 074 -Johnston CU 074 - 17 472 QC: FCH/UKS T1: FCH October 10, 2001 17: 47 Char Count= 0 hector... why I wish to 76 77 78 79 80 81 See the observations of Lord Hoffmann in Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [19 97] 2 WLR 898 at 902–3 B´ nabent, Droit civil, 177 e See, generally, Nicholas, French Law of Contract, 216 ff.; Whittaker, ‘Obligations’, 348 The legal basis for the imposition of astreintes is now to be found in Loi no 91-650 of 9 July 1991, arts 33 7 ‘Toute obligation... the debtor, for if the third party is able by payment to gain an independent restitutionary right against the debtor, then the latter may lose the benefit of any defences and, what is more, lose counterclaims which he may have against the creditor .74 68 69 70 71 72 73 74 See P Birks and J Beatson, ‘Unrequested Payment of Another’s Debt’, chap 7 with a postscript by J Beatson, in: J Beatson, The Use and... under article 1236 it is the third party who may be entitled to recover in respect of the substitute performance, whereas in the case of article 1144 it is the creditor, for the cost of obtaining substitute performance by the third party Article 1236 of the Civil Code distinguishes between performance by interested and non-interested third parties, this accounting in part for the different grounds of... remplacement recognises that the creditor does have an interest in procuring a substitute performance in the absence of performance by the debtor, it denies the creditor a right to do so; instead, the creditor’s interest in procuring substitute performance is balanced by the courts against the debtor’s interest in performing himself (c) Obligations de faire Finally, while paiement for the purposes of article... ‘Some Observations on the Taxonomy of Unjustified Enrichment in Scots Law’, (1998) 2 Edinburgh LR 180 1998 SC 72 5 22 Ibid at 72 7, 72 8 P1: FCH/FYX P2: FCH/FYX CU 074 -Johnston CU 074 - 17 466 QC: FCH/UKS T1: FCH October 10, 2001 17: 47 Char Count= 0 hector l macqueen Shilliday was approved by the House of Lords in Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd,23 and Lord Hope of Craighead said that there... impossibility’, which notably includes the position where the debtor’s obligation is too personal to be enforced against him .78 This system is certainly a triumph of juristic interpretation and judicial invention Judicial invention, because until 1 972 astreintes had no legislative basis and were justified (entirely unconvincingly) on the basis that they were a form of damages ;79 juristic interpretation, because... FCH/FYX CU 074 -Johnston CU 074 - 17 QC: FCH/UKS T1: FCH October 10, 2001 17: 47 Char Count= 0 payment of another’s debt 461 instances where the unauthorized payment was made by a third party who had a sufficient interest (as defined by the particular jurisdiction) in the discharge of the debt In such an instance, the third party has presumably the power to tender performance, and in any event his payment, if... Enrichment’, in: The Laws of Scotland: Stair Memorial Encyclopaedia (1996), vol XV, §§ 73 –86 P1: FCH/FYX P2: FCH/FYX CU 074 -Johnston CU 074 - 17 QC: FCH/UKS T1: FCH October 10, 2001 17: 47 Char Count= 0 payment of another’s debt 4 67 the main enrichment action corresponds to the condictio indebiti, and there is in addition a subsidiary general enrichment action But this approach has been strongly rejected by Robin... early nineteenth centuries Citing and following Justinian’s Institutes,33 the institutional writers Bankton and Bell were for the third-party payment constituting discharge Bankton wrote: ‘Payment may be made for one that is ignorant of it, or even against his will, because he cannot hinder the creditor to take his payment where he can get it.’ 34 Bell observed: Payment, to the effect of extinguishing . 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. 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. to do so; instead, the creditor’s interest in procuring substitute performance is balanced by the courts against the debtor’s interest in performing himself. (c) Obligations de faire Finally, while