2023-10-19 06:00:08
Difficulties encountered in fulfilling an obligation imposed by a judge do not justify non-performance and payment of any penalty may be due. Payment of a penalty in the event of non-performance of an obligation within the time limit set by a judge can only be removed if this non-performance results from an extraneous cause, according to the law, but not if compliance is only difficult.
This is what was reminded to a union of co-ownership who had to restore the awning of one of its members, removed for the purposes of work (Cass. Civ 3, 21.9.2023, K 22-15.484). This element having never been put back in place, the co-owner had ordered the union to carry out this work, subject to a penalty per day of delay. Technically, the operation proved very difficult given the new standards and the state of the support wall, contested the union. It highlighted studies by architects or structural engineers which highlighted the inability of the wall to support the installation.
No impossibility
These are difficulties but not a foreign cause which alone could excuse the non-performance and exempt from paying the penalty, the judges ruled, because if there were real difficulties in carrying out this work, the union did not find it impossible to do so. The penalty should therefore not be removed.
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