The\nformal notice is often the first step in a dispute. But how useful is it? Why\nis it so important? This article explains what you need to know about the\nformal notice. <\/p>\n\n\n\n
A\nformal notice is a written notice sent by the creditor to the debtor, reminding\nhim to perform his obligations. The creditor can also denounce to his debtor a\npartial or incomplete execution, and thus demand a full and complete execution\nas it is due. In short, the formal notice is a \"final notice\" given\nby the creditor to his debtor. <\/p>\n\n\n\n
It is\nimportant at the outset to distinguish the fact for the creditor to \"put his\ndebtor in default\u201d and the fact of being \"in default\". While the\nformer refers to a letter sent by the creditor, the latter constitutes a state\nof the party whose failure to perform his obligation is legally established.\nThis state of default appears only when the delay given to the debtor to perform\nhas expired and that the debtor failed to do so. <\/p>\n\n\n\n
For\nexample, if the debtor is summoned in the formal notice to comply with his\nobligations within 10 days of receiving the letter, he is considered being in\ndefault as of the 11th day. The real effects of the notice of claim only begin\nat that moment. This is why, among other things, it is important that your\ndemand letter contain a deadline. <\/p>\n\n\n\n
According\nto the law, there are certain situations where the creditor is exempt from\nwriting a formal notice. This is the case when the debtor clearly indicates\nthat he will not perform his obligation, or when he was supposed to perform\nwithin a certain period and did not do so. For example, if the photographer\nhired for your wedding did not show up on the date agreed upon, there is no\nneed to remind him after that his presence was required! <\/p>\n\n\n\n
This\nis also true in cases of emergency, where an immediate intervention is\nnecessary. But be careful, \"emergency\" cases are interpreted strictly,\nand the rule is that the formal notice must be sent. It is also possible to\nprovide in the terms of a contract that a party will be in default\nautomatically in a given situation.<\/p>\n\n\n\n
In any\nevent, it must be kept in mind that these situations are the exception and not\nthe rule. A creditor who thinks he qualifies in one of them will have to\njustify his position. The courts have repeatedly reminded us that failure to\nsend a notice of default is fatal and prevents the creditor from seeking\nrecourse. Therefore, we recommend that you send a formal notice in all cases,\neven when you may be exempted. It is better to do more than not enough! <\/p>\n\n\n\n
In\naddition, you should send your debtor a formal notice as soon as you notice\nthat your debtor is in default. This will avoid any ambiguous situation where\nthe creditor's silence could be interpreted as an additional grace period\ngranted to the debtor.<\/p>\n\n\n\n
The\npurpose of a formal notice is to give the debtor a concrete opportunity to\nperform. It is therefore important to choose a realistic and sufficient\ndeadline in your demand letter, adapted to the situation. <\/p>\n\n\n\n
Moreover,\nin the event that a legal action is taken without the debtor having first been\nput in default, the debtor is given a sufficient time for performance and, if\nhe does so, the legal costs are to be paid by the creditor. <\/p>\n\n\n\n
For\nthis reason, while some situations exempt you from sending a formal notice,\nothers require you to do so, or else to have your recourse rejected. It is\ncommon to see this situation with respect to the performance of the work:\nbefore giving a mandate to another contractor to correct poorly executed work,\nyou must give the original contractor a chance to repair the situation himself.\nThe same logic applies to a buyer who notices a defect in the property\npurchased: the buyer must notify the creditor, the seller, of the existence of\nthe defect and give the seller formal notice to remedy it himself. <\/p>\n\n\n\n
Beyond\nthe right for the debtor to perform, the formal notice is to the advantage of\nthe creditor since there is a non-negligible chance that the debtor will\nperform. If this is not the case, the letter of default represents the\ninevitable gateway to any legal claim. Indeed, the law provides that the\ncreditor may avail himself of sanctions in order to force the execution of his\ndebtor only when the latter is considered to be in default. Thus, the formal\nnotice, accompanied by a realistic deadline for the debtor's performance,\nrepresents an opening condition to ultimately assert your rights before the\ncourt. <\/p>\n\n\n\n
Another\nusefulness of the formal notice is that it marks the starting point for the\ninterest you may claim from your debtor during legal proceedings, in addition\nto the amount of your debt. It is therefore to your advantage to send a formal\nnotice as soon as possible, as of your debtor defaults. <\/p>\n\n\n\n