A RTICLE 5.1.4
( Obligations of result vs. obligations of means )
1) The debtor of an obligation of result is obliged to provide the promised result.
2) The debtor of an obligation of means is required to bring to the performance of his service the prudence and diligence of a reasonable person of the same quality placed in the same situation.
1. Distinction between the obligation of result and the obligation of means
The degree of diligence required of a party in performing an obligation varies considerably depending on the nature of the obligation.
Sometimes a party is only bound by an obligation of means. This part must then make all the efforts that a person of the same quality would make in the same circumstances, but it does not guarantee a specific result. In other cases, however, the obligation is more onerous and a specific result is promised.
The distinction between an obligation of result and an obligation of means corresponds to two frequent and typical degrees of intensity in the assumption of responsibility of a contractual obligation, without however covering all possible situations.
Obligations of both types can coexist in the same contract. For example, a company which repairs a defective machine can be considered as having an obligation of means concerning the quality of the repair in general, and an obligation of result concerning the replacement of certain spare parts.
2. Impact of the distinction on the assessment of correct execution
Taken together, the two paragraphs of this article give judges and referees criteria for judging correct execution. In the event of an obligation of result, a party is only bound to achieve the promised result, and failure to achieve this is in itself equivalent to non-performance, subject to the application of the force majeure provision. (Article 7.1.7). On the other hand, the finding of non-fulfillment of an obligation of means leads to a less severe judgment, based on the comparison with the efforts that a reasonable person of the same quality placed in the same situation would have made. This distinction means that more will be expected from a highly specialized company chosen for its skills than from a less equipped partner.
1. A, distributor, promises to achieve 15,000 sales in one year in the area covered by the contract. If, at the end of the period, A has sold only 13,000 pieces, he has clearly failed in fulfilling his obligation. See section 5.1.4 (1).
2. B, another distributor, promises to “be diligent in developing sales of the product” in the area covered by the contract, with no minimum quantity requirement. This provision creates an obligation of means; it obliges B to take all the measures that a reasonable person in the same situation (nature of the product, characteristics of the market, size and experience of the company, presence of competitors, etc.) would take to promote sales (advertising, visits to customers, adequate service, etc.). B does not promise to sell a certain number of pieces per year, but undertakes to do everything that can be expected of him acting as a reasonable person. See section 5.1.4 (2).
A RTICLE 5.1.5
(Determination of the type of bond)
To determine whether the obligation is a means or a result, we take into account in particular:
- the way in which the obligation is expressed in the contract;
- the price and other elements of the contract;
- the degree of hazard normally present in the pursuit of the desired result;
- the influence that the other party may have on the performance of the obligation.
1. Criteria for determining the nature of the obligation
It is important to determine whether it is an obligation of result or a simple obligation of means, because the obligation is heavier in the first case. Such determination is sometimes difficult. This article therefore establishes criteria which may assist parties, judges and arbitrators, although the list is not exhaustive.
The problems that arise are often questions of interpretation.
2. Nature of the obligation as expressed in the contract
The way in which an obligation is expressed in the contract can sometimes help to determine whether the parties intended to create an obligation of result or of means.
1. A, a contractor, agrees to build warehouses for B, who is very keen to see the work completed within an unusually short time. If A undertakes that “the work will be completed before December 31”, he assumes an obligation of result for the respect of the deadline. If he only undertakes to “try to complete the work before December 31”, this is an obligation of means to try to meet the deadline, and not to guarantee to respect it in a way. categorical. See section 5.1.5 (a).
3. Price or other elements of the contract
The price or other elements of the contract can also give indications as to the nature of an obligation. An unusually high price or some other particular reciprocal non-pecuniary obligation may indicate an obligation of result in cases where one would normally assume a simple obligation of means. Clauses linking the payment of the price to the success of the operation, penalty clauses applicable if the result is not achieved and hardship clauses allowing a party to adapt the contract if the circumstances make performance too hard by compared to the original agreement are other examples of contractual arrangements which may – in one way or another – help determine the nature of the obligation in question. See section 5.1.5 (b).
4. Degree of hazard in the performance of an obligation
Where the performance of an obligation by one party normally involves a high degree of hazard, it is generally to be expected that that party does not intend to guarantee a result, and that the other party does not expect a result. such guarantee. The opposite conclusion will be drawn when the desired result can, as a rule, be achieved without any special difficulty. See section 5.1.5 (c).
2. A space agency undertakes to put a telecommunications satellite into orbit, the failure rate of prior launches having been 22%. The space agency cannot be expected to guarantee that the orbiting will be successful.
The obligation is simply to observe the degree of diligence required for such launches in light of the current state of technology.
3. A promises to deliver 20 tons of steel to B on June 30th. Such a relatively simple operation is not subject to any particular risk. A is committed to the specific result of delivering the required quantity of steel by the specified date and not just trying to do so.
5. Influence of the obligee on the performance of an obligation
In certain situations, one party may have some influence on the performance of the obligations of the other party. This can transform into obligations of means obligations that could otherwise be considered as obligations of result.
4. A is willing to provide B with the technical assistance necessary to apply a recently discovered chemical process, and an agreement is made that B will send some of its engineers to participate in training sessions organized by A. A cannot promise that the other party will master the new process as this outcome depends in part on whether B actually sends its engineers to the training sessions, the skill of those engineers and their attention during the sessions. See section 5.1.5 (d).