Consent To Assignment Of Contract

The assignment must be made in writing or it is null and void.

If the assigned party so expressly consents, the assignment of the contract liberates the assignor for obligations arising after the assignment; otherwise the assignor remains jointly and severally liable for the performance of the contract.

Contradicting previous decisions of French courts, new article 1124 provides that a contract concluded in violation of a unilateral promise with a third party which knew of the existence thereof is null and void.

New article 1143 provides that violence exists when a party, abusing the state of dependency in which its co-contracting party finds itself, obtains from such co-contracting party an undertaking which such co-contracting party would not have otherwise agreed to in the absence of such constraint, and benefits thereby from a manifestly excessive advantage.

New article 1216 provides that a contracting party may, with the consent of its co-contracting party, assign its position as party to a contract; such an “assignment of contract” () will simplify considerably the manner in which contractual transfer occurs under French law.

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Such consent may be given in advance, including in the contract entered into between the future assignor and assigned party, in which case the assignment enters into force with respect to the assigned party when the contract concluded between the assignor and the assignee is notified to the assigned party or when the assigned party so acknowledges.Under new article 1186, a contract validly formed may also become lapsed () if one of its essential components disappears.If the performance of several contracts is necessary for the realisation of the same transaction and one of such contracts disappears, all of the contracts the performance of which is rendered impossible by such disappearance, and all those for which the performance of the contract which disappeared was a determining condition of the consent of a party are also rendered is invoked was aware of the existence of the entire transaction when it consented to the contract to which it is a party.New article 1104 provides that contracts must be negotiated, concluded and performed in good faith (previously the implied obligation of good faith applied only to performance) and failure to comply with such obligation can not only trigger the payment of damages, but also result in the nullification of the contract.New article 1112-1 provides specifically that if one party to the contractual negotiations is aware of information the significance of which would be determinative for the consent of the other party (except for information relating to the estimation of the value of services to be provided under the contract), it must inform such other party thereof if such other party is legitimately unaware of such information or relies on the first party.This has been traditionally opposed to the Anglo-American principle of interpreting ambiguous provisions in the manner a “reasonable person” would understand them.However, under new article 1188, if the mutual intention of the parties cannot be determined, the contract is to be interpreted according to the sense that a reasonable person placed in the same situation would give to it.A third party may request in writing that the beneficiary of a preference pact confirm, within a reasonable period specified in the written request, whether or not there is a preference pact in force and if the beneficiary intends to rely thereupon.If no response is made to the request, the beneficiary of the preference pact may no longer request to be substituted for the requesting party or to have the contract declared null and void.A party may request in writing to a person who would be entitled to claim the nullity of a contract either to confirm the validity of the contract or to bring an action to nullify the contract within six months, failing which the person will be foreclosed from alleging the nullity.If an action in nullity is not brought within six months, the contract will be deemed to have been confirmed.


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