RECENT FRENCH CONSTRUCTION LAW LESSONS – GOOD FAITH AND IMPLIED ACCEPTANCE
Partner, Jones Day (Paris)
Partner, Jones Day (London)
Associate, Jones Day (Paris)
Much attention has been given recently to the impact of Covid-19 on all aspects of law, including construction. However, there have been other significant legal developments which should not be overshadowed. Notably, in France, the Court of Cassation helped define the limits of the application of good faith and provided useful guidance on implied acceptance. To provide context to these developments, this article reviews the significance of good faith and implied acceptance prior to addressing the recent cases.
Section I of this article examines the obligation of good faith under French Law and a recent Court of Cassation decision finding that good faith cannot exclude application of a liquidated damages clause, even when the Employer is responsible for the delay. Section II of this article explores the impact of acceptance of the works under French law with particular emphasis on the mandatory warranties and reviews four recent Court of Cassation decisions which provide guidance as to when implied acceptance will be found by the court and how to protect against such a finding. Throughout, comparisons are drawn with the position under English Law, in order to offer a common law comparable.
I. Good Faith (“Bonne foi”)
The doctrine of good faith has been the subject of significant attention in the UK, particularly in the last five years, as a result of a series of important
Pt 4] Recent French Construction Law Lessons – Good Faith