Site Abandonment: Record, Formal Notice and Termination at the Contractor's Fault

A building site grinds to a halt. The workers do not come back, the site cabins stay in place, the programme slips, and the contractor only replies sporadically. For an investor whose asset must be delivered by a lease start date, for a landlord financing energy capex under a time constraint, or for a private individual managing family wealth who has embarked on a major restructuring, every week of inertia costs twice: in the extra cost of completion and in lost evidence. The general law of contract, as it results from Ordinance No. 2016-131 of 10 February 2016, offers the project owner (maître d'ouvrage) a precise sequence, but each step takes effect only if it is taken at the right time and with the right wording. This guide sets out that decision timetable: what must be recorded before writing, what the formal notice (mise en demeure) to the contractor must contain to open the right to terminate, when to switch to expert appointment in summary proceedings (référé-expertise) under Article 145 of the French Code of Civil Procedure, and how to secure the takeover of the works by a third party in legal terms.

Characterising the stoppage of works before denouncing it

Abandonment of a site is a question of fact

No provision of the French Civil Code or of the Construction and Housing Code defines abandonment of a site. The concept originates in case law and boils down to a prolonged and unjustified stoppage of the works, assessed at the sole discretion of the trial courts by reference to the contract, the contractual programme and the conduct of the parties. The practical consequence is immediate: the project owner cannot simply assert abandonment, it must prove it. A delay in performance, even a significant one, is not in itself abandonment; a three-week interruption during the holiday period on a technical package is not to be analysed in the same way as a structural works package left exposed to the elements in November.

The characterisation matters because it governs two things: the seriousness of the non-performance, a condition of termination by notice within the meaning of Article 1224 of the Civil Code, and the burden of proof in the event of a challenge. The last paragraph of Article 1226 is explicit: if the debtor applies to the court to challenge the termination, the creditor must then prove the seriousness of the non-performance. The project owner's whole documentary effort is therefore made before the termination, not after.

Checking the contractor's legal position before acting

Before characterising the stoppage as wrongful abandonment, the possibility of a legitimate suspension must be ruled out. Two grounds must be examined.

The first is the defence of non-performance (exception d'inexécution) under Article 1219 of the Civil Code: a party may refuse to perform its obligation, even though it is due, if the other party has not performed its own and that non-performance is sufficiently serious. Unpaid interim payment applications, site access not released and unapproved execution studies are all arguments that the contractor will raise.

The second is specific to private works contracts. Article 1799-1, paragraph 4, of the Civil Code provides that as long as no guarantee has been provided and the contractor remains unpaid for the work carried out, the contractor may suspend performance of the contract after a formal notice that has remained without effect at the end of a period of fifteen days. A project owner that has not delivered the joint and several guarantee required by law therefore risks seeing its "abandonment of the site" recharacterised as a lawful suspension. There is however an important reservation: this paragraph does not apply where the project owner enters into a works contract on its own account and to meet needs unrelated to a professional activity connected with that contract. For a professional investor or an institutional landlord, the exposure is real; for a private individual having their own home renovated, the lever is closed to the contractor.

The first check on the file is therefore internal: state of payments, threshold of the payment guarantee, history of technical approvals. A formal notice sent without this prior audit weakens everything that follows.

Day 0: fixing the state and safety of the site

The first step is not a letter, it is a record of the site. The actual progress on the day of the stoppage is the variable that will later determine the balance of the contract, the basis of the extra cost of completion and the share of defects attributable to the defaulting contractor rather than to the replacement contractor. As soon as the site is taken over by a third party, that snapshot is irretrievably lost.

In practice, the project owner has a report drawn up by a commissaire de justice (bailiff), supplemented by a technical survey by the design team: progress by package, work carried out and not carried out, materials delivered and stored, state of temporary protections, presence or absence of personnel, state of the site installations. The exact evidential weight of a non-adversarial report depends on the professional status of commissaires de justice and should be checked case by case; in any event, summoning the contractor to the report by a prior written notice considerably strengthens the project owner's position and defuses in advance the criticism of one-sidedness.

Where the stoppage creates an immediate risk, an unshored excavation, unstable scaffolding, a building open to bad weather or intrusion, the summary proceedings route does not wait for termination. Article 835 of the Code of Civil Procedure allows the president of the judicial court to order, even where there is a serious dispute, the protective or restoration measures that are required, either to prevent imminent damage or to put an end to a manifestly unlawful disturbance. The same provision allows, where the existence of the obligation is not seriously open to challenge, the award of an interim payment or the performance of an obligation to do something. For its part, Article 834 allows, in all cases of urgency, measures that meet no serious dispute. These two grounds are distinct from expert appointment in summary proceedings and may be used in parallel.

The formal notice: the step that opens all rights

Without a formal notice, almost nothing is possible

The formal notice is not a courtesy formality: it is the condition for opening almost all remedies. It conditions specific performance (Article 1221), recourse to a third party to perform the obligation (Article 1222), termination by notice (Article 1226) and, where there is a termination clause, its operation (Article 1225). It also governs when penalties become payable: the last paragraph of Article 1231-5 provides that unless there is definitive non-performance, the penalty is incurred only once the debtor has been given formal notice.

As to form, Article 1344 of the Civil Code provides that the debtor is given formal notice either by a summons or an act containing a sufficient demand, or, if the contract so provides, by the mere fact that the obligation has fallen due. In a private works contract governed by the general law, a registered letter is therefore not a general legal requirement, but it remains the minimum for evidential purposes; a summons served by a commissaire de justice is preferable on a file with high stakes, particularly where the contractor no longer collects its mail.

The content that opens the right to terminate

A badly drafted formal notice produces the most costly effect there is: it loses several weeks without opening any right. The text sent to the contractor must, on pain of rendering the later termination ineffective, contain the following elements:

• a precise identification of the unperformed obligations, by package and by item, with reference to the contractual programme and the site meeting minutes
• a demand to resume the works within a set period, which must be a reasonable period within the meaning of Article 1226, assessed having regard to the nature of the works, the resources to be remobilised and the urgency of the site
• the express statement, required by Article 1226, that failing performance of its obligation by the debtor, the creditor will be entitled to terminate the contract
• if the contract contains a termination clause, express reference to that clause, Article 1225 specifying that the formal notice takes effect only if it expressly mentions the termination clause
• the calculation of the contractual late-completion penalties accrued and how they are calculated
• the summoning of the contractor to an adversarial record of progress on a fixed date

Where the contract provides its own contractual formal notice procedure, with a specific period, addressee and form, that procedure must be followed to the letter in addition to the legal requirements.

Suspending payments, but not just any way

Article 1217 lists the remedies open to a dissatisfied creditor: refusing to perform or suspending performance of its own obligation, seeking specific performance, obtaining a price reduction, bringing about termination, claiming compensation. The same provision specifies that remedies that are not incompatible may be combined and that damages may always be added to them.

Suspending payment of interim applications is the most immediate weapon, but under Article 1219 it presupposes sufficiently serious non-performance. Suspending payment for work actually carried out and not disputed, on the ground of a delay on another package, exposes the project owner to the complaint of reciprocal non-performance and, in a professional contract, to the contractor's legitimate suspension under Article 1799-1. The operational rule is to withhold the share of the price corresponding to the services not carried out, not the whole account.

Switching to expert appointment in summary proceedings: the turning point of the timetable

The right moment

Expert appointment in summary proceedings under Article 145 of the Code of Civil Procedure is available where there is a legitimate reason to preserve or establish, before any trial, evidence of facts on which the resolution of a dispute may depend. In the case of site abandonment, that legitimate reason is established as soon as the actual progress, the conformity of the work carried out and the cost of completion will determine the balance of the contract and the liability of the parties involved. The legitimate reason, the application to the judge and the framing of the expert's brief are examined in our article on expert appointment in summary proceedings before a construction dispute.

The right moment is when the formal notice has gone unanswered and a takeover by a third party becomes likely, but before that takeover begins. Filing the summons in summary proceedings during the period allowed by the formal notice is generally premature and weakens the case on good faith; waiting until the replacement contractor has covered over the disputed work amounts to destroying the evidence. Between these two limits the window is narrow, and it is this window that structures the whole timetable.

Exclusive jurisdiction now applies to expert appointments concerning buildings

Decree No. 2025-619 of 8 July 2025, which entered into force on 1 September 2025 and applies only to proceedings begun from that date, added two paragraphs on territorial jurisdiction to Article 145. The general rule gives the claimant a choice between the court that could hear the case on the merits and the court of the area in which the measure is to be carried out. But the third paragraph sets out a derogation that directly concerns building sites:

By derogation from the second paragraph, where the investigative measure concerns a building, the court of the place where the building is located has sole jurisdiction.

For an expert appointment concerning a building site, there is therefore no longer any choice: the court of the place where the building is located has sole jurisdiction, whatever the jurisdiction clause in the contract or the seat of the parties. A Paris investor holding an asset in the regions can no longer apply to the president of the Paris judicial court for an expert appointment on that asset. A mistake in bringing the application costs at least several weeks, sometimes more than the period of the formal notice itself.

The effect of suspending the limitation period

Expert appointment in summary proceedings has a second advantage, which is strictly a matter of timing. Article 2239 of the Civil Code provides that the limitation period is suspended when the judge grants an application for an investigative measure made before any trial, the period starting to run again for a duration that may not be less than six months from the day on which the measure was carried out. On a construction file where the expert's work extends over several months, this mechanism secures the timing of the action on the merits. It does, however, require the date on which the report is filed to be monitored, as it is the starting point of the remaining period.

Terminating at the contractor's fault: mechanics and effective date

The three routes of Article 1224

Article 1224 of the Civil Code states that termination results either from the application of a termination clause or, in the event of sufficiently serious non-performance, from a notice from the creditor to the debtor or from a court decision. Termination of a works contract at the contractor's fault therefore requires neither a termination clause nor a prior court decision. It is the quickest way to end the contract, and also the riskiest.

Article 1226 sets out the mechanics: the creditor may, at its own risk, terminate the contract by notice; except in urgent cases, it must first give the defaulting debtor formal notice to perform its undertaking within a reasonable period, with the express statement already mentioned; where the non-performance persists, it notifies the termination and the reasons for it. This requirement to give reasons is not decorative: a terse notice that merely declares termination without detailing the breaches deprives the project owner of most of its argument if the contractor applies to the court. In practice, the termination letter sets out the non-performance package by package, recalls the chronology of reminders, the date of the formal notice and the absence of resumption noted when it expired.

The phrase at its own risk must be read literally. The debtor may at any time apply to the court to challenge the termination, and the burden of proving the seriousness of the non-performance then rests on the project owner. A termination declared on the basis of a delay that the judge finds insufficiently serious turns into non-performance attributable to the project owner.

Where the contract contains a termination clause

Article 1225 makes the operation of the clause subject to an unsuccessful formal notice, unless it was agreed that termination would result from the mere fact of non-performance, and requires the formal notice to mention the clause expressly. Before any action, reading the contract is therefore imperative: the clause often covers only certain exhaustively listed undertakings, and the non-performance relied on must appear in that list.

Not to be confused with termination under Article 1794

Article 1794 of the Civil Code allows the owner to terminate a fixed-price contract of its own volition, even though the work has already begun, but by compensating the contractor for all its expenses, all its work, and everything it could have earned from the undertaking. Lost profit is therefore included. A clumsily drafted termination letter, which invokes the project owner's wish to end the contract without setting out the breaches, risks being recharacterised on that basis. The financial gap between the two characterisations is considerable: in one case the project owner claims the extra cost of completion, in the other it compensates the margin the contractor would have made.

Dating the effects

Article 1229 governs the effective date: termination takes effect either under the conditions provided by the termination clause, or on the date the debtor receives the notice given by the creditor, or on the date fixed by the judge or, failing that, on the day of the summons. Tracking the acknowledgement of receipt therefore becomes part of the file, since it fixes the dividing line between what belongs to the terminated contract and what belongs to the replacement contract.

As to the scope of the termination, the same article distinguishes according to whether the services could only be useful through complete performance of the contract, in which case the parties return everything they obtained, or whether they were useful as reciprocal performance progressed, in which case there is no restitution for the earlier period and the termination is characterised as a prospective termination (résiliation). A works contract under which the work carried out is kept and completed by a third party typically falls within the second case. Restitutions are governed by Articles 1352 to 1352-9 of the Civil Code.

Securing the takeover of the works by another contractor

Replacement no longer requires court authorisation

This is the point on which old reflexes persist the most. Since the Ordinance of 10 February 2016, Article 1222 of the Civil Code states:

After formal notice, the creditor may also, within a reasonable time and at a reasonable cost, have the obligation performed itself or, with the prior authorisation of the judge, destroy what was done in breach of it. It may ask the debtor to reimburse the sums committed for that purpose. It may also apply to the court for an order that the debtor advance the sums necessary for that performance or that destruction.

The project owner therefore does not need to be authorised by the judge to entrust completion to a third party. Prior authorisation is required only to destroy what was done in breach of the obligation, a frequent situation in construction where non-conforming work must be removed before the takeover. This distinction structures the timetable: the takeover can start quickly, whereas demolition of existing work must await a decision.

Two constraints frame the project owner's freedom, and it is these that are later argued before the judge: the time and the cost must be reasonable. In concrete terms, this requires a documented tender for the replacement contract, comparable quotes, keeping the unit prices of the original contract as a reference as far as possible, and traceability of variances justified by urgency or by the takeover of existing work. A completion contract awarded by direct agreement at a much higher price, without consultation, exposes the project owner to a reduction of its claim for reimbursement.

Coordinating the takeover and the expert appointment

The order of operations is decisive. The expert appointment must be sought before the replacement contract starts, so that the expert can record the state of the work before the third party intervenes. Where urgency makes it impossible to wait for the first expert meeting, the project owner has at the very least a complete adversarial record drawn up, supported by photographs and surveys, and keeps the materials removed. Failing that, the debate will shift to attribution of responsibility: the ousted contractor will argue that the defects noted result from the replacement contractor's intervention.

Article 1222 also allows the court to be asked to order the debtor to advance the sums necessary for performance. This request for an advance can usefully be combined with the request for an interim payment under Article 835 of the Code of Civil Procedure where the obligation is not seriously open to challenge, and with damages under Article 1231-1, the debtor being ordered to pay damages for non-performance or delay unless it proves that performance was prevented by force majeure.

Preserving the acceptance regime

A takeover by a third party does not remove the need to organise acceptance of the works. Article 1792-6 recalls that acceptance takes place at the request of the most diligent party, either amicably or, failing that, by the court and that it is in any event pronounced on an adversarial basis. Performance at the expense and risk of the defaulting contractor, which this same provision envisages, relates to the completion warranty (garantie de parfait achèvement), and therefore to the period after acceptance: it is not the basis for replacement during the works, which rests on Article 1222. Confusing the two leads to building the formal notice on an inapplicable provision. The forms of acceptance, the report and the fate of reservations are detailed in our article on acceptance of works and its effects.

Two special regimes not to be treated as general law

The house-building contract (CCMI)

Under a house-building contract (contrat de construction de maison individuelle, CCMI), the sequence is entirely pre-empted by the completion guarantee. Article L. 231-6 of the Construction and Housing Code provides that the guarantor, when it finds that the delivery period has not been met or is informed of this by the project owner, gives the builder formal notice without delay and that, fifteen days after a formal notice that has remained unanswered, it performs its obligations. It is then the guarantor that must designate, under its responsibility, the person who will complete the works. The project owner may itself enter into the completion contracts only on the guarantor's proposal, and on condition that the building has reached the weathertight stage. On the completion guarantee and the other routes open to the project owner, see our analysis of remedies against the builder under a CCMI.

The guarantee covers the cost of overruns above the agreed price that are necessary for completion, with a possible excess not exceeding 5% of the agreed price. If the builder is subject to safeguard or administration proceedings, the guarantor may require the administrator to state its position on continuing the contract; failing a reply within one month, with no extension possible, the guarantor performs its obligations. The project owner's first step under a CCMI is therefore not a formal notice to the builder but informing the guarantor.

The consumer project owner

For contracts concluded from 1 January 2022, Article L. 216-6 of the Consumer Code, resulting from Ordinance No. 2021-1247 of 29 September 2021, opens a specific route to the consumer: to give notice of suspension of payment of all or part of the price under the conditions of Articles 1219 and 1220 of the Civil Code, then to terminate the contract if, after formal notice to perform within a reasonable additional period, the professional has not performed. The contract is deemed terminated on the professional's receipt of the written notice informing it of the termination. Termination may even be immediate where the professional refuses to perform or where it is clear that it will not deliver the goods or provide the service. These provisions are without prejudice to the award of damages.

The decision timetable, summarised

• Immediate internal audit: payments made, whether the Article 1799-1 payment guarantee has been delivered, technical approvals outstanding
• Record of the state of progress, contractor summoned in writing, and application to the summary proceedings judge under Articles 834 or 835 of the Code of Civil Procedure if the site presents a danger or a risk of deterioration
• Formal notice containing the reasonable period, the express statement of the right to terminate and, where applicable, reference to the termination clause; targeted suspension of unperformed interim applications; calculation of penalties
• At the end of the period without resumption: summons in summary proceedings for an expert appointment before the president of the judicial court of the place where the building is located, the only court with jurisdiction
• Notification of the reasoned termination, package by package, tracking the date of receipt that fixes the effective date
• Documented tender for the completion contract, start of the takeover under the expert's supervision, request for an advance of the sums and for an interim payment
• Monitoring of the filing of the expert's report, the starting point of the remaining limitation period, which starts to run again for at least six months

Conclusion

On a site abandonment, the substantive law is rarely the project owner's weak point: the texts give it direct weapons, replacement without court authorisation, termination by notice, suspension of payments, advance of sums. The weak point is the chronology. A formal notice without the express statement required by Article 1226, an unreasoned termination, an expert appointment sought after the replacement contractor has started or brought before a court that has no jurisdiction since the Decree of 8 July 2025: each of these mistakes is paid for in months and in a discount on recovery of the extra cost.

Our position is firm: termination at fault must never be the first step, but it must never be delayed beyond the expiry of the formal notice period either, at the risk of weakening the case on the seriousness of the non-performance. Before sending your formal notice, have the contract, the termination clause and your payment position reviewed by a lawyer: it is at that stage, and not at the time of termination, that the completion dispute is won.

Frequently asked questions

Is a judge's authorisation required to have a site completed by another contractor? No. Since Ordinance No. 2016-131 of 10 February 2016, Article 1222 of the Civil Code allows the project owner, after formal notice, to have the obligation performed itself within a reasonable time and at a reasonable cost, and then to ask the debtor to reimburse the sums committed. Prior authorisation from the judge is required only to destroy what was done in breach of the obligation. The former rule of Article 1144 of the Civil Code, which required court authorisation, no longer applies.

Can a works contract be terminated without a termination clause? Yes. Article 1224 of the Civil Code provides that termination results either from a termination clause or, in the event of sufficiently serious non-performance, from a notice from the creditor to the debtor or from a court decision. Termination by notice presupposes, except in urgent cases, a prior formal notice expressly stating that the creditor will be entitled to terminate the contract failing performance, followed by a notice setting out the reasons for it. It is exercised at the project owner's own risk, and it will be for the project owner to prove the seriousness of the non-performance if the contractor applies to the court.

Before which court should an expert appointment concerning a building site be sought? Before the court of the place where the building is located, which has sole jurisdiction. Decree No. 2025-619 of 8 July 2025, applicable to proceedings begun from 1 September 2025, added to Article 145 of the Code of Civil Procedure an express derogation to that effect for investigative measures concerning a building. The choice between the court on the merits and the court of the place where the measure is carried out, open for other measures, is excluded in this case. A jurisdiction clause in the contract does not allow this to be departed from for this type of expert appointment.

What period should be allowed to the contractor in the formal notice? Article 1226 of the Civil Code requires a reasonable period, without quantifying it. Whether it is reasonable is assessed according to the nature of the works remaining to be carried out, the resources the contractor must remobilise and the urgency specific to the site. A manifestly too short period exposes the later termination to challenge; an excessively long period weakens the argument on seriousness. Where the contract provides a contractual formal notice procedure with its own period, that period must also be respected.

Can the project owner stop paying a contractor that has left the site? It may suspend performance of its own obligation under Articles 1217 and 1219 of the Civil Code, provided that the contractor's non-performance is sufficiently serious. The suspension must relate to the services not carried out, not the whole account, failing which it will itself amount to non-performance. In a professional contract, a project owner that has not provided the payment guarantee required by Article 1799-1 of the Civil Code is also exposed to the unpaid contractor's right to suspend performance after a formal notice that has remained without effect at the end of a period of fifteen days.

Are contractual late-completion penalties automatic? No. Article 1231-5 of the Civil Code specifies that, unless there is definitive non-performance, the penalty is incurred only once the debtor has been given formal notice. The judge may also, even of his or her own motion, reduce or increase the penalty if it is manifestly excessive or derisory, and reduce it in proportion to the benefit obtained from partial performance. Any stipulation contrary to these two powers is deemed unwritten.

Under a CCMI, can the project owner choose for itself the contractor that will complete the house? Not freely. Article L. 231-6 of the Construction and Housing Code entrusts the completion guarantor with designating, under its responsibility, the person who will complete the works, after a formal notice to the builder that has remained unanswered for fifteen days. The guarantor may however propose that the project owner enter into the completion contracts itself, on the twofold condition that the proposal comes from the guarantor and that the building has reached the weathertight stage. The guarantee of price overruns necessary for completion may be subject to an excess not exceeding 5% of the agreed price.