Formal notice to pay: the wording that makes it work, and what it triggers

Article 1344 of the French Civil Code is one sentence long, and that sentence contains two routes.

The first: the debtor is put on notice by a summons or a document containing a sufficient demand. No form is imposed. A letter is enough, provided it demands — that it orders payment instead of requesting it. That is the distinction separating a chasing letter from a formal notice, and it sometimes turns on a single verb.

The second route is the one people forget: if the contract so provides, the mere fact that the obligation has fallen due counts as formal notice. Many standard terms of sale and framework agreements carry that clause, often headed “automatic formal notice”. Where it exists, the effects run from the due date and the letter merely records them. The contract is therefore reread before writing, not afterwards: it is the contract that says whether the date that counts is the due date or the date of the letter.

That said, nobody is obliged to write it themselves. The creditor, its adviser or a commissaire de justice may serve the document, and the choice depends on what is to be got out of it. It is also the moment to decide whether to go all the way: having the formal notice served and the recovery carried through assumes you have checked, before the letter, that the debtor can still pay.

A generic template always fails in the same place: it produces a letter that is right for one effect and silent on the other three. So we reason clause by clause.

Identification and the demand itself

The letter identifies the creditor and the debtor, then the debt: contract or invoice, reference, due date, principal amount claimed. An unquantified sum cannot be claimed — that is the first defect raised in defence. Then comes the demand itself, in the imperative, and the date of the letter, which will be the starting point for everything that follows.

The period allowed

No provision fixes a minimum period for an ordinary formal notice to pay. Article 1231 of the French Civil Code speaks of a reasonable period, and so does article 1226. Practice settles on eight or fifteen days between businesses, and the length is assessed in the light of the amount, the nature of the debt and the practices of the sector. A period that is plainly too short does not make the letter void: it weakens what will be drawn from it afterwards.

The wording that opens the way out of the contract

It is the one most often missing, and the one that costs the most. Article 1226 of the French Civil Code allows a creditor to terminate the contract by notice, at its own risk — but it requires the prior formal notice to state expressly that, failing performance, the creditor will be entitled to terminate the contract. Without that sentence, the letter starts interest running and nothing more: you remain bound by a contract you wanted to leave, and have to start again. The provision reserves two cases in which no formal notice is required: urgency, and circumstances that make it pointless.

Late-payment interest

Article 1344-1 of the French Civil Code is the most cited provision, and it says exactly this: formal notice to pay a monetary obligation starts late-payment interest running, at the statutory rate, without the creditor having to show any loss. Article 1231-6 mirrors it on the liability side: damages for delay consist of interest at the statutory rate, from the formal notice.

The statutory rate is not a stable figure. It is set by order, calculated half-yearly from the European Central Bank's policy rate, and it has two values depending on whether the creditor is acting in the course of business (article L. 313-2 of the French Monetary and Financial Code). That is why the letter refers to the rate in force rather than to a percentage hard-coded into it.

Between businesses: what is already running without a letter

Here is the exception that upends the intuition. Article L. 441-10 II of the French Commercial Code provides that late-payment penalties fall due on the day after the payment date shown on the invoice, without any reminder being necessary. Their rate is the one agreed between the parties, and may not be less than three times the statutory interest rate; failing any stipulation, it is the European Central Bank's refinancing rate plus ten points.

The same provision adds a fixed indemnity for recovery costs, due as of right from any business in default, set at 40 euros by article D. 441-5 of the French Commercial Code. Where the costs actually incurred exceed that amount, further compensation may be claimed on proof. One limit only is placed on it: the creditor may not rely on those indemnities where the opening of sauvegarde, redressement or liquidation proceedings prevents payment of the debt owed to it on the due date.

The practical consequence is counter-intuitive: on a commercial invoice, the formal notice does not create the late-payment penalties. It quantifies them and claims them. The late-payment interest of article 1344-1 is a safety net — it applies where the contract is silent, or outside the field of commercial transactions.

Liquidated damages and damages generally

Two symmetrical provisions, and the same condition. Article 1231 of the French Civil Code: unless non-performance is final, damages are due only if the debtor has first been given formal notice to perform within a reasonable period. Article 1231-5, last paragraph: save where non-performance is final, the contractual penalty is incurred only once the debtor has been given formal notice.

A carefully negotiated liquidated damages clause therefore remains a dead letter until the formal notice has gone out. Nor is it untouchable: a court may, even of its own motion, reduce a manifestly excessive penalty, or increase a derisory one.

What it does not trigger

One point to know before playing for time: a formal notice does not interrupt the limitation period. It starts interest running, not a fresh period in which to sue. A file chased every six months by recorded delivery becomes time-barred exactly like one that was never chased at all.

Article 1344 imposes no form, but every effect in the table above is counted from a date. It is for the creditor to establish that date.

Recorded delivery with acknowledgement of receipt remains the ordinary route: it establishes dispatch, its date, and presentation to the addressee. Keep the acknowledgement and the envelope, including where the item comes back unclaimed — what then has to be shown is presentation at the right address, and the address is checked on the Kbis extract before sending, not after the return.

An electronic registered delivery is equivalent to recorded delivery where it meets the requirements of article 44 of Regulation (EU) no. 910/2014, known as eIDAS (article L. 100 of the French Postal and Electronic Communications Code, as detailed by Decree no. 2018-347 of 9 May 2018, applicable since 1 January 2019). The addressee's prior consent is required only where it is not acting in the course of business: between companies, the question does not arise.

A plain email may perfectly well amount to a sufficient demand by its content. It proves neither receipt nor its date, which means losing the starting point for everything else.

There remains the summons to pay, served by a commissaire de justice: the same act, the same effect, with proof of delivery on top. It differs from the commandement de payer, which comes later in the process and in principle presupposes an enforceable title already obtained. Some fields, commercial leases first among them, have their own commandement, with formalities and time limits that an ordinary formal notice does not replace.

Once the period has expired without payment, three routes open, and the choice turns on a single question: is the debt seriously arguable? If it is not, an injonction de payer and interim relief for a payment on account give a title within weeks. If it is, proceedings on the merits are unavoidable. Our page on debt recovery sets out all three and their timescales.

Two checks are worth the time they cost, and they are done before, not after: whether insolvency proceedings have been opened against the debtor, and whether sums can be secured by a protective measure. An enforceable title against an empty company cannot be enforced.

Composite example — real cases are covered by professional secrecy (article 226-13 of the French Criminal Code). An IT contractor invoices for end-of-project work. The client half-heartedly disputes it, then stops replying. The formal notice goes out by recorded delivery, claims the principal, announces penalties from the due date — and forgets to announce termination. Three months later the contractor wants to stop the maintenance still owed under the same contract: it cannot do so without starting again with a fresh formal notice, this time a complete one. The delay is not down to the procedure, it is down to a missing sentence.

Writing before rereading the contract. An automatic formal notice clause changes the date from which the effects run; a liquidated damages clause changes the amount claimed; a jurisdiction clause changes the court to be seised afterwards. All three can be read in ten minutes.

Leaving out the announcement of termination. The most useful effect of article 1226 is also the one that depends entirely on a form of words, and it is the one a generic template never carries, since it cannot know whether the creditor wants out of the contract.

Announcing proceedings you will not bring. A debtor receiving a second formal notice without having seen the first one followed through has learned what it wanted to know. The question to settle before writing is not the wording, it is what you will do on the fifteenth day.

A debt fallen due and a doubt about what to do next? The simplest course is to set the situation out to us before incurring the costs of proceedings: the scope and the amount are announced before the engagement, including where the answer amounts to one letter.