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performance of another’s obligation 437
2. Who may perform?
In principle any person may perform another person’s obligation: as it
is often put, ‘in principle the personality of the solvens is a matter of
indifference’.
16
The third-party need not for this purpose even purport to
act in the name of the debtor in offering the prestation, as long as he
offers the creditor exactly the subject-matter of the debtor’s obligation.
While in French law a typical context for third-party performance of an
obligation is the case where the debtor asks a third party to perform the
prestation for him, there is no need for the third party to have the debtor’s
consent or authority to act in this way (though the issue of consent does
affect the possible recourse which a third party may have against the
debtor).
17
However, this general principle is qualified by article 1237 of the code,
which disallows third-party performance where the creditor has an in-
terest in performance by the debtor himself. In general, the issue of a
creditor’s interest is a matter for the juges du fond and they have inter-
preted the matter generously from the point of view of the creditor.
18
The
creditor’s ‘interest’ for this purpose is typically found in the fact that the
creditor in entering the contract with the debtor relies on the latter’s skill
or other personal characteristics, of which he should not be deprived by
third-party intervention. However, it may be found in other elements, so
that, for example, where a person sells property in return for an annual
payment (rente viag

`
ere), the seller (creditor) may have a legitimate inter-
est in refusing payment of the rente by a third party even if the buyer
(debtor) is insolvent, as non-payment of the rente would otherwise entitle
him to terminate the contract and recover his property.
19
Also on this
basis, the courts have allowed a landlord of a farm to refuse to accept the
payment of rent by the father of the tenant farmer where both the tenant
and his father’s attitude suggested that the father did not treat his previ-
ous assignment of the farm as final: the landlord was justified in fearing
that the father’s payments could later be used as evidence in support of
his ‘abusive allegations’.
20
Related to this is the position taken by French
courts as regards the parties’ exclusion of third-party performance: while
the Civil Code does not require that the third party acts with the consent
16
Malaurie and Ayn
`
es, Droit civil, Les obligations, 559.
17
Below, 439 ff.
18
J. Issa-Sayegh, ‘Extinction des obligations, Paiement: Caract
`
eres g
´
en
´

eraux. Parties.
Effets’, in: Juris-Classeur civil, art. 1235
`
a 1248, fasc. 64
`
a 67, no. 59, 11.
19
Civ. 24 Jun. 1913, DP 1917.1.38.
20
Civ. (3) 23 Feb. 1972, Bull. Civ. III, no. 126, 92.
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438 simon whittaker
of the debtor, French courts accept that if both the debtor and creditor
agree (whether in advance or subsequently) that only the debtor should
perform, then this agreement will be given effect, subject to its being
‘legitimate’.
21
On the other hand, the creditor may not oppose perfor-
mance by a third party simply on the basis that it is useless or even
dangerous to the debtor.
22
This law, then, is expressed in terms of what a third party may do,
and whether a creditor may refuse third-party performance if the due
paiement is tendered. But what does this mean in practice? Modern French
law possesses no notion of mora creditoris to categorise the situation
where the creditor wrongly refuses due performance.
23
Instead, where
the prestation consists of the supply of money or property, French law

possesses a procedure by which tender of what is due may be formally
offered to the creditor and then ‘consigned’ to the relevant approved
depositary.
24
If the creditor does not then accept the formal tender, af-
ter the appropriate procedures and a decision of the court, the debtor
is discharged by operation of law.
25
This procedure applies as much to
third-party paiement as to paiement by the debtor.
26
Moreover, more gen-
erally, it would seem that tender of a conforming prestation byathird
21
Issa-Sayegh, ‘Extinction’, 10; B. Starck, H. Roland and L. Boyer, Droit civil, Les
obligations, vol. III, R
´
egime g
´
en
´
eral (5th edn, 1997), 63; Req. 7 Jun. 1937, DH 1937.427
(where the third party was held able effectively to intervene despite the agreement of
the debtor and creditor to the contrary, as it was found by the lower court that the
agreement had been ‘fraudulent’); Civ. 29 May 1953, D 1953.516 (where the third
party had an interest in intervening and the parties no legitimate interest in
refusing intervention).
22
Issa-Sayegh, ‘Extinction’, 10, citing Aubry and Rau, Cours de droit civil franc¸ais, no. 316,
221, n. 2 (who disagree with Pothier in this respect on the basis that article 1236

does not so restrict third-party paiement).
23
Cf. Pothier, Trait
´
e des obligations, no. 500, who does indeed refer to putting the
creditor en demeure. On the rejection of this idea in the modern law, see Terr
´
e, Simler
and Lequette, Les obligations, 1004, n. 1 noting the contrary position in German law
found in
§ 293 BGB. For criticism of this rejection, see C. Robin, ‘La mora creditoris’,
[1998] Review trimestrielle de droit civil 607.
24
This procedure is known as ‘offres r
´
eelles avec consignation’ and is provided for by
arts. 1257–8 code civil and arts. 1426 ff., Nouveau code de proc
´
edure civile.
25
Art. 1257 al. 1, code civil. According to Henri, L
´
eon and Jean Mazeaud, Lec¸ons de droit
civil, vol. II/1, Obligations, th
´
eorie g
´
en
´
erale (8th edn by Franc¸ois Chabas, 1991), 954, n. 3

following J. Courrouy, ‘La consignation d’une somme d’argent est-elle un payement?’
[1990] Review trimestrielle de droit civil 23, even after consignation and court approval, the
debtor’s discharge does not mean that there is paiement nor is there therefore an end
to the relationship of obligation between the parties.
26
Terr
´
e, Simler and Lequette, Les obligations, 1004.
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performance of another’s obligation 439
party would prevent any attempt to enforce performance against the
debtor.
27
3. The ‘liberating effect’ of performance and recourse by the third
party
Article 1236 sets out the ‘liberating effect’ of third-party performance, an
issue which in French law is intimately related to the question of recourse
by the third party. In the following discussion it should be recalled that
there is no general requirement that any of the paiements in question be
effected with the debtor’s consent: instead, the primary distinction is bet-
ween performance by a third party with or without an interest in doing so.
(a) Performance by interested third parties
Where the third party whose performance is accepted by the creditor has
an interest in so acting, then the debtor is discharged vis-
`
a-vis the creditor,
but not vis-
`
a-vis the third party, who is subrogated by operation of law into

the legal position of the creditor.
28
French law therefore uses the idea of
relative discharge to reconcile the third party’s intention to discharge the
debtor, the creditor’s satisfaction and the technique of subrogation. Arti-
cle 1236 gives two examples of such an interest: where the third party
is jointly obligated with the debtor and where he is the debtor’s surety
(caution). As to the latter, it is to be noted that a surety who performs the
obligation for the debtor (typically, but not exclusively, by paying a sum of
money) may recover from and is subrogated to the creditor’s rights against
the debtor whether or not the surety entered the contract of suretyship
at the request of the principal debtor.
29
However, the form of article 1236
makes clear that a third party may have an interest in performing an-
other’s obligation, even where he is not himself a joint debtor or surety.
A common example of this in French practice is the situation where A
27
Such a denial could be based on the idea that a creditor’s failure to accept tender of
due performance would constitute breach of his obligation de loyaut
´
e and that this
breach would mean that the creditor would not be allowed to terminate the contract
for non-performance, nor to rely on the debtor’s own non-performance as a defence
(the exception d’inex
´
ecution) nor recover damages: see Robin, ‘La mora creditoris’,
611–12, 625 ff.
28
Subrogation by operation of law is known as subrogation l

´
egale. Subrogation may also
take place by agreement, this being known as subrogation conventionnelle.
29
Arts. 2028 al. 1 and 2029, code civil. Where joint debtors are liable solidairement (i.e.
jointly and severally), payment in full by one gives rise to a right of recourse against
the others to the limits of their own part share: art. 1214, code civil.
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440 simon whittaker
buys from B property that is subject to a mortgage or lien owed by B to
C: here, A has an interest in paying the debt owed by B to C so as to avoid
the threat of dispossession by C.
30
The technique of subrogation has both advantages and disadvantages
from the point of view of the third party.
31
The main advantage is that
he may take advantage of any security which the creditor enjoyed in re-
lation to performance of the obligation; but the disadvantages include
the possibility of being met with a defence or right of set-off which the
debtor enjoyed against the creditor and the possibility of the right expiring
according to the prescription period applicable to the creditor’s claim.
32
This being the case, it is interesting that French law at times allows a third
party who possesses a subrogated claim also to have recourse against the
debtor on the basis of his own independent right. This is the case with
sureties, whose claims arise simply on payment and without any need to
satisfy the conditions of gestion d’affaires or enrichissement sans cause.
33

(b) Performance by non-interested third parties
As regards performance by non-interested third parties, the position has
proved more controversial and remains more complex. Article 1236 itself
distinguishes here between those third parties who perform ‘in the name
of and to discharge the debtor’ (au nom et en l’acquit du d
´
ebiteur) and those
who perform to discharge the debtor but in their own name:
34
the former
are to benefit from subrogation to the creditor’s rights against the debtor
by operation of law and so their performance in general discharges the
debtor vis-
`
a-vis the creditor, but not vis-
`
a-vis the third party. Article 1236
also provides that performance by a third party to discharge the debtor but
in the third party’s own name will discharge the debtor, but will not give
rise to any subrogation to the creditor’s rights: here, then, the original
obligation is entirely extinguished. However, in order for even relative
discharge to occur, the third party must perform out of his own resources
30
A lien (droit de r
´
etention) has been held opposable against third parties even if they are
not themselves liable on the debt: Civ. (1) 7 Jan. 1992, Bull. Civ. I, no. 4, 3.
31
Starck, Roland and Boyer, R
´

egime g
´
en
´
eral,41ff.
32
M. Cabrillac and Ch. Mouly, Droit des s
ˆ
uret
´
es (3rd edn, 1995), 195.
33
Ibid., 195 and see Civ. 25 Nov. 1891, DP 1892.1.261.
34
Two further situations are not dealt with in the text. First, where a third party pays
another’s (false) debt, thinking the debt genuine, the third party may recover his
paiement from the creditor as being undue: arts. 1235 al. 1 and 1376, code civil.
Secondly, where a third party pays another’s (true) debt in his own name thinking
himself the debtor (which he is not), then he may not recover against the true debtor
(see Whittaker, ‘Obligations’, 411 and cases there cited), but he may recover from the
creditor: Starck, Roland and Boyer, R
´
egime g
´
en
´
eral, 128.
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performance of another’s obligation 441

(de ses propres derniers), a condition which arises in the context of payments
in money. Thus, if a third party purports to pay a debtor’s debt out of his
own funds, but is found to have paid out of the creditor’s funds, then the
obligation is not discharged.
35
However, the terms of article 1236 do not give a complete picture of the
modern law.
First, French lawyers do not consider that article 1236 prevents the
effectiveness of an express condition that on performance for the debtor a
third party is to be subrogated to the creditor’s rights:
36
such a subrogation
conventionelle leads to the same position as does subrogation by operation of
law, the debtor being discharged only vis-
`
a-vis the creditor and remaining
bound to the original obligation to the third party.
Secondly, quite apart from any subrogated rights, a third party in this
situation may have an independent right of recourse against the debtor.
In this respect, there has recently been a fluctuation in the attitude of the
Cour de cassation. The traditional view was that third-party performance
could give rise to a right of recourse if an independent ground for such a
right could be established on the facts, notably by way of mandat (if the per-
formance was authorised by the debtor), gestion d’affaires or enrichissement
sans cause (if the performance was not so authorised).
37
However, in 1990
the Cour de cassation took a radical departure and declared that where a
third party knowingly pays another’s debt out of his own resources without
being bound to do so, the sole fact of paiement gives rise to an independent

right of recourse.
38
This jurisprudence was the subject of much juristic
criticism: quite apart from other considerations, the mere discharge of the
debtor in these circumstances clearly cannot always allow the third party
to recover, for the latter may have acted from a spirit of generosity to
the debtor, which should clearly rule it out.
39
More importantly, the new
approach allowed recovery in situations where the conditions of gestion
d’affaires or enrichissement sans cause were not satisfied, but these conditions
35
Issa-Sayegh, ‘Extinction’, no. 62, 11, citing Com. 14 Nov. 1975, D 1976 IR 26.
36
Aubry and Rau, Cours de droit civil franc¸ais, 222, n. 9; art. 1250 al. 1, code civil provides
that subrogation conventionelle must be expressly provided for and made at the same
time as performance of the debtor’s obligation.
37
Aubry and Rau, Cours de droit civil franc¸ais, 220; M. Planiol and G. Ripert, Trait
´
e pratique
de droit civil franc¸ais, vol. VII, Obligations (2nd edn, 1954), 552. Paiement may also be
made to the creditor under a contract between the debtor and the third party such
as insurance.
38
Civ. (1) 15 May 1990, JCP 1991.II.21628, note Bruno Petit; D 1991.538, note
G. Virassamy.
39
Petit, JCP 1991.II.21628, 36.
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442 simon whittaker
should be retained as they encapsulate a fair and proper balance of the
interests of the parties in question and their avoidance sacrifices the inter-
ests of the debtor.
40
Perhaps in response to these criticisms, only two years
later, the Cour de cassation changed its mind and implicitly returned to
the traditional position.
41
In this case, the claimant had paid the ‘resi-
dence tax’ of his handicapped stepdaughter who lived with him over a
period. After her death, he claimed to be reimbursed for these sums from
her estate. The Cour de cassation declared that ‘it is for a person who has
knowingly discharged another person’s debt without being subrogated to
the creditor’s rights, to show that the cause from which this payment
arises implies for the debtor an obligation to reimburse the payer in re-
spect of sums paid’. This being the case, the lower court was entitled to
reject the claimant’s claim on the ground that he had not established
on what basis he had paid the tax. Subsequent decisions of the Cour de
cassation have taken the same line.
42
What then is the present position? Clearly, where a third party performs
in order to discharge the debtor out of a spirit of generosity, then he can-
not later change his mind and claim reimbursement from the debtor,
and the form of the 1992 judgment suggests that it will be for a third
party to show that it was not done out of a sense of philanthropy to the
debtor.
43
This rule holds good whether or not the performance was ef-

fected in the third party’s own name or the debtor’s. It is also clear that
this change in approach by the courts does not threaten the established in-
dependent claims of interested third-party performers, such as the surety,
for in such a case the relationship of suretyship itself constitutes the cause
from which his performance arises, even if the suretyship was undertaken
against the principal debtor’s wishes.
44
Beyond this, a distinction should be made on the basis of whether or
not the third party’s performance was authorised by the debtor.
If performance is rendered in the name of the debtor and with his au-
thority, then a contract of mandat arises between them,
45
with a resulting
right of reimbursement in the third party as the debtor’s mandatory.
46
On
the other hand, if the debtor did not give any authority for the third party
to act in his name and perform his obligation or if the third party did
not act in the debtor’s name (even though he acted in order to discharge
40
Cf. Ibid., 37.
41
Civ. (1) 2 Jun. 1992, D 1992 Somm. 407, note Philippe Delebecque.
42
Civ. (1) 23 Feb. 1999, pourvoi no. 95-18.860 (unreported).
43
Delebecque D 1992 Somm. 407.
44
Cabrillac and Mouly, Droit des s
ˆ

uret
´
es, 194.
45
Art. 1984, code civil.
46
Art. 1999, code civil.
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performance of another’s obligation 443
him), then the third party may be able to recover on the basis of gestion
d’affaires or, if not, enrichissement sans cause.
47
For a right of recourse to arise in the third party as the debtor’s g
´
erant
d’affaires
48
there are two conditions that are particularly significant in
this context:
49
first, gestion d’affaires arises only when the third party’s per-
formance is ‘useful’ (utile) to the debtor, a condition which is placed in
the ‘sovereign power of assessment’ of the lower courts. Now, it may be
thought that the performance of another’s obligation is always ‘useful’ to
him, but it may not be, for by being liable to the third party directly and
independently of the original obligation, the debtor may lose the bene-
fit of any defences which he might have possessed against the original
creditor: in such a circumstance it would not be useful for a third party
to perform to the prejudice of the debtor.

50
It is on this ground also that
it is rare for gestion d’affaires to be successfully invoked by a bank who
pays a debt of a third party for which the bank no longer had a mandate,
since intervention by a bank in such a situation contradicts the principle
against conducting a client’s affairs without authority.
51
Secondly, while
47
Again, in the case of payment in money this assumes that the third party paid from
his own resources. In this respect, the presumption is that a person who pays in his
own name does so from his own resources, but this presumption may be rebutted.
Thus, if the court finds that the third party paid with the debtor’s own resources,
clearly he cannot be reimbursed: Req 18 Feb. 1901, DP 1901.1.303.
48
Art. 1375, code civil. For an early application of gestion d’affaires in this context, see Civ.
8 Jan. 1862, DP 1863.1.75. For an introduction to gestion d’affaires in English, see
Whittaker, ‘Obligations’, 403–6.
49
Gestion d’affaires may arise whether or not the g
´
erant acts in the name of the maˆıtre
d’affaires, though if he acts in his own name in entering legal transactions with third
parties, any recourse of the latter is in principle available only against the g
´
erant
(unauthorised manager) and not the maˆıtre d’affaires: J. Flour and J L. Aubert, Les
obligations, vol. II, Le fait juridique (6th edn, 1994), no. 17, 22. Tribunal de grande
instance, Strasbourg, 9 July 1954, GP 1954.2.350 is an example of its application,
where no mention is made of whether the performance was or was not made in the

debtor’s name. Cf. Issy-Sayegh, ‘Extinction’, no. 67, 12 and Starck, Roland and Boyer,
R
´
egime g
´
en
´
eral, 63, who both assert that performance by a third party other than in
the name of the debtor can give rise to recovery only on the basis of enrichissement
sans cause.
50
Cf. Virassamy, D 1991.538, 541 and M. Billiau obs. JCP 1992.I.3632, no. 6 who criticise
the position there taken by the Cour de cassation on the ground that this issue is
thereby avoided. The issue of utility is judged from the point of view of the would-be
g
´
erant to whom intervention must appear to be useful: B. Starck, H. Roland and
L. Boyer, Droit civil, Les obligations, vol. I, Le contrat (6th edn, 1998), 750; Flour and
Aubert, Le fait juridique, 16.
51
Ph. Derouin, ‘Le paiement de la dette d’autrui, R
´
ep
´
etition de l’indu et enrichissement
sans cause’, D 1990 Chron. 1.
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gestion d’affaires does not rest on any authority in the debtor, in French

law it will not arise if the debtor has made clear his lack of consent
52
as
long as this is deemed to be legitimate.
53
Recovery by the third party on the basis of enrichissement sans cause is
possible where the conditions of neither mandat nor gestion d’affaires are
fulfilled.
54
An example may be found in a decision of the Cour de cassation
in 1984 in which the former husband of a child’s mother had paid her
maintenance in respect of the child’s upkeep after divorce.
55
After the
child’s mother and natural father obtained the child’s legitimation (the
effect of which was retroactive), the former husband successfully sued
the child’s natural father on the ground that his payments to the mother
enriched the natural father sans cause, since his own obligation to main-
tain the child had been retroactively put to an end on legitimation. Of
the conditions for recovery on the ground of enrichissement sans cause,
56
the most significant hurdle in the context of performance of another’s
obligation appears to be that the performance was made without fault on
the part of the third party.
57
In common with the position more generally,
a distinction is to be drawn here between a third party who acts in bad
faith (notably where his intervention constitutes a deliberate breach of an
applicable rule
58

) and where he acts merely negligently.
59
52
Malaurie and Ayn
`
es, Droit civil, Les obligations, 530 (concerning gestion d’affaires
generally) and Com. 21 Nov. 1978, Bull. Civ. IV no. 271, 223 (where the lack of consent
stemmed from a prior contract term between the debtor and the third party).
53
A. B
´
enabent, Droit civil, Les obligations (4th edn, 1994), 217. An example of a refusal
being illegitimate may be found in Civ. (1) 11 Feb. 1986, GP 1986.2, Somm. 507, note
A. Pi
´
edeli
`
evre in which a son paid the monthly installments of his father’s loan,
despite the father’s opposition; the court accepted that this was a case of gestion
d’affaires, for the father’s opposition was not justified by the family’s interest.
54
The principle of the subsidiarity of the action de in rem verso rules it out only where
the law provides an effective remedy or where such a remedy is barred by a legal
obstacle: Whittaker, ‘Obligations’, 416–17.
55
Civ. (1) 1 Feb. 1984, D 1984.388. It is to be noted that the subsidiary nature of the
action de in rem verso did not prevent the former husband’s recovery, despite his
possessing a claim for r
´
ep

´
etition de l’indu from his former wife (who was insolvent).
56
On which see Whittaker, ‘Obligations’, 413 ff.
57
Virassamy, D 1991.541; Petit, JCP 1991.II.21628, 37.
58
E.g. Civ. (1) 3 Apr. 1979, D 1979 IR 408 (where the third party was held to act ‘dans
son propre int
´
er
ˆ
et et
`
a ses propres risques’).
59
Derouin D 1990 Chron. 1, 201–2 and see, for a general affirmation of the availability
of recovery on the basis of enrichissement sans cause despite the claimant’s negligence:
Civ. (1) 11 Mar. 1997, D 1997.407, note Marc Billiau. It would seem that the effect of
the latter decision is that the payer’s negligence does not bar recovery on the ground
of enrichissement sans cause, but this leaves the possibility of set-off by the debtor on
the ground of a claim for delictual fault based on the third party’s negligence under
art. 1382, code civil (on this in general terms, see Billiau, ibid., 409).
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performance of another’s obligation 445
4. Summary of French law
The French position in relation to article 1236 may therefore be sum-
marised as follows.
First, a creditor may not reject tender of due performance by a third

party to the obligation unless the creditor has an interest in doing so
or the debtor has agreed or does agree with the creditor that the third
party should not perform. There are, on the other hand, no exceptions
to this rule on the ground that the debtor has not authorised the third-
party performance nor on the ground that the creditor considers that the
debtor would be prejudiced by his acceptance of due tender.
Secondly, if the creditor accepts tender of due performance by a third
party, then the debtor is thereby discharged vis-
`
a-vis the creditor himself.
Thirdly, where the creditor accepts third-party performance, if the
third party has an interest in performing or if he pays ‘in the name of
and to discharge the debtor’ then, while the debtor is discharged vis-
`
a-vis
the creditor, he still owes the same obligation to the third party who is
subrogated to the creditor’s rights. Again, there is no distinction in this
respect according to whether the third party intervenes with or without
the debtor’s authority.
Fourthly, where the tender of performance of another’s obligation by a
third party in order to discharge the debtor is accepted by the creditor,
that third party will possess an independent recourse against the debtor
(quite apart from any subrogated rights he may have) if he can establish a
recognised legal ground for so doing whether this is mandat, some other
relationship from which the performance arose (as with caution), gestion
d’affaires or enrichissement sans cause. In this way, while French law does not
make the debtor’s authority a condition either for discharge of an obliga-
tion by the third party nor of the latter’s recovery, the debtor’s interests
are by no means left unprotected.
5. The position in English law contrasted

At this stage, it may be helpful to recall the position in English law, which
differs significantly from its French counterpart.
First, in English law the question whether a creditor of an obligation
must accept tender of performance by a third party is dealt with in terms
of ‘vicarious performance’.
60
In this respect, in general the creditor may
not reject tender of performance by a third party who performs on behalf
60
See G. H. Treitel, The Law of Contract (10th edn, 1999), 699 ff.
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446 simon whittaker
of the debtor and with his authority, the exceptions to this position be-
ing made for the cases where the nature of the obligation is ‘personal’
in the sense that the creditor relies on the skill and judgment of the
debtor and where the terms of any contract from which the obligation
arises exclude performance by a third party.
61
As regards tender of perfor-
mance, it may be thought that the whole notion of vicarious performance
is predicated on the idea that the third party performs on behalf of the
debtor and that therefore a creditor should not be required to accept
tender of ‘performance’ by a third party who acts other than on behalf
of the debtor.
62
This does not mean, however, that the debtor has actu-
ally to have authorised the ‘purportedly vicarious performance’ at the
time of tender, and there is authority which suggests that a creditor is
not justified in refusing due performance if tendered on behalf of the

debtor.
63
Secondly, the effect of tender of due performance in English law is
in general to relieve the debtor of liabilities for failure to perform. Due
tender is assimilated to performance itself and will give rise to the plea
of tender as a defence to any subsequent action against him for failure
to perform: there is no need in English law for a doctrine such as mora
creditoris.
64
Where the obligation in question is one to pay money, then a
successful plea of tender will not of itself discharge the debt, but if the
creditor sues, the debtor’s payment into court and proof of continued will-
ingness to pay since tender will bar any claim for interest or damages after
tender.
65
Thirdly, at least as regards payment of another’s money debt,
66
where
the creditor accepts tendered performance by a third party, the generally
accepted position is that the debtor is discharged only if the third party
acts on behalf of the debtor with the intention to discharge him and with
his authority (whether actual or subsequent by ratification).
67
Exceptions
to this position are made where the payment is effected under compulsion
of law (that is, to avoid the threat of the legitimate application of legal
61
Ibid., 700–1. Cf. Chitty on Contracts (28th edn, 1999), §§ 20-079–20-081, which accepts
the substance of this position, but does not distinguish sharply between the two.
62

Below, 447–8.
63
Read v. Goldring (1813) 2 M & S 86.
64
G. H. Treitel, Remedies for Breach of Contract, A Comparative Account (1988), 41; Chitty on
Contracts,
§ 22-083.
65
Chitty on Contracts, § 22-084.
66
Some contend that as a matter of authority, the performance of obligations other
than to pay money does discharge a debt without the authority of the debtor: A.
Burrows, The Law of Restitution (1993), 223, citing Gebhardt v. Saunders [1892] 2 QB 452.
67
P. Birks, An Introduction to the Law of Restitution (revised edn, 1989), 189–90; Lord Goff of
Chieveley and G. Jones, The Law of Restitution (5th edn, 1998), 16–17.
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performance of another’s obligation 447
process) and, less certainly, necessity.
68
On the other hand, it has been
argued by some that payment of another’s debt should be held to discharge
the debt even where the debtor gave no authority.
69
Fourthly, there is a similar division of opinion as to possible restitution-
ary consequences of the payment of another’s debt. Those who hold that
authority is required for discharge, allow restitution from the debtor in
favour of the payer only where discharge has occurred and where there
is an independent unjust factor, such as mistake or necessity, but they

argue that in the absence of discharge, the payer may recover from the
creditor on the ground of failure of consideration.
70
Those who argue for
discharge in the absence of debtor authority also argue for the existence
of a wider area of restitutionary recovery from the debtor and, conversely,
a narrower one from the creditor.
71
It has been said that the original purpose of the common-law rule was
the concern to protect a debtor from the imposition of an undesired cred-
itor, but, assuming this is so, the present free assignability of rights (even
with its formalities) suggests that this is no longer a convincing legal
policy. Apart from this concern and from disagreements about the proper
interpretations of the (admittedly complex) common-law authorities,
72
the
dispute between these two positions centres to a considerable extent on
the availability of possible restitution against the creditor in the absence of
discharge of the debtor and, of course, on the general concern of English
law to discourage officious intermeddling.
73
A further concern of those
who support the traditional English position is that it protects the posi-
tion of the debtor, for if the third party is able by payment to gain an
independent restitutionary right against the debtor, then the latter may
lose the benefit of any defences and, what is more, lose counterclaims
which he may have against the creditor.
74
68
See P. Birks and J. Beatson, ‘Unrequested Payment of Another’s Debt’, chap. 7 with a

postscript by J. Beatson, in: J. Beatson, The Use and Abuse of Unjust Enrichment, Essays on
the Law of Restitution (1991).
69
D. Friedmann, ‘Payment of Another’s Debt’, (1983) 99 LQR 534; Burrows, Law of
Restitution, 222–3.
70
See, especially, Birks and Beatson, ‘Unrequested Payment’, 201–2. Goff and Jones, Law
of Restitution, 129 take a different view again, accepting the general position as
regards discharge, but arguing for restitution against the debtor by means of
subrogation in all cases except those involving maliciously officious intervention.
71
Friedmann, ‘Payment of Another’s Debt’, 539; Birks and Beatson, ‘Unrequested
Payment’, 201–2.
72
For their analysis see Birks and Beatson ‘Unrequested Payment’.
73
For the leading authority on this approach see Falcke v. Scottish Imperial Insurance Co.
(1886) 34 Ch D 234.
74
Birks and Beatson, ‘Unrequested Payment’, 203.
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The differences between the English and French positions in this area
stem partly from their different authoritative bases and historical sources.
However, they are also based on the well-known different positions taken
in particular to the intervention of a person in the interests of another
but without his consent: in French law, the officious intermeddler is dis-
couraged by the more subtle restrictions on the availability of recovery
under gestion d’affaires and enrichissement sans cause,ratherthanonany

broader exclusionary rule. And where the third party has an ‘interest’ in
paying, then he is not thought to be intermeddling: it is his own affair
(even if it was not previously) and he can recover either by way of legal
subrogation or personally and independently without the benefits or the
disadvantages that subrogation entails. Furthermore, French law protects
the debtor’s rights of defence or counterclaim against the creditor in two
ways: first, by using the technique of subrogation, where the third party’s
claim is subjected to the same constraints as the creditor’s and secondly,
as regards claims on the basis of enrichissement sans cause, by setting the
measure of restitution at the lowest value as between the ‘impoverish-
ment’ of the claimant and the ‘enrichment’ of the defendant,
75
for the
debtor’s enrichment by the third party would be less than the latter’s im-
poverishment if the debtor would not have had to pay (as much) to the
creditor.
However, in turning to the second situation of this discussion, it will be
seen that English law does sometimes consider it not merely not officious
but actually a ‘duty’ for a person other than a debtor of an obligation
to perform or have performed the obligation: this is the light in which I
suggest the English law of mitigation of damage may be viewed.
III. The facult´
e
de remplacement: article 1144,
code civil
1. Article 1144,
code civil
, and the nature of performance of
contractual obligations
Again the starting point is a provision of the French Civil Code. But here

it refuses to allow intervention by the non-debtor without judicial autho-
risation. The provision in question relates to much wider questions about
the nature of performance of contractual obligations and this requires a
brief introduction.
Many common lawyers are aware that French law takes a very differ-
ent attitude from that of English law to the primary remedy for breach
75
See generally, Whittaker, ‘Obligations’, 418 ff.
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performance of another’s obligation 449
of contract:
76
French lawyers accept that a creditor of a contractual obli-
gation has a right to performance by the debtor.
77
This is put in terms
of the availability of ex
´
ecution en nature (or performance in kind), a type
of court order that may be backed up by the threat of the payment of a
money sanction (or astreinte) in respect of the time when the court order
is not obeyed, when the order is termed ex
´
ecution forc
´
e en nature. Such a
direct order of ex
´
ecution en nature is ruled out by French law only when

performance by the debtor is impossible, including not merely physical
impossibility but also ‘moral impossibility’, which notably includes the
position where the debtor’s obligation is too personal to be enforced
against him.
78
This system is certainly a triumph of juristic interpretation and judicial
invention. Judicial invention, because until 1972 astreintes had no legisla-
tive basis and were justified (entirely unconvincingly) on the basis that
they were a form of damages;
79
juristic interpretation, because the terms
of the Civil Code suggest quite the opposite position and strikingly an-
nounce in article 1142 that ‘every obligation to do or not to do gives rise
to damages in the case of its non-performance by the debtor.’
80
Clearly,
this provision was enacted in the Civil Code because its drafters were suffi-
ciently imbued with enlightenment thinking that they thought it contrary
to personal liberty for an individual to be ordered to perform his private-
law obligations. However, it is not this provision which is of principal
concern here, but rather article 1144, which originally stated that ‘[t]he
creditor may also, in the case of non-performance, be authorised to have
the obligation performed at the expense of the debtor.’
81
This option for
a creditor is known generally as the facult
´
e de remplacement.
To a common lawyer, this is a rather odd provision: why should the
court be involved in these circumstances? How does this relate to the Civil

Code’s provisions on non-performance? However, the reason why I wish to
76
See the observations of Lord Hoffmann in Co-operative Insurance Society Ltd v. Argyll
Stores (Holdings) Ltd [1997] 2 WLR 898 at 902–3.
77
B
´
enabent, Droit civil, 177.
78
See, generally, Nicholas, French Law of Contract, 216 ff.; Whittaker, ‘Obligations’, 348.
79
The legal basis for the imposition of astreintes is now to be found in Loi no. 91-650 of
9 July 1991, arts. 33–7.
80
‘Toute obligation de faire ou de ne pas faire se r
´
esout en dommages et int
´
er
ˆ
ets, en
cas d’inex
´
ecution de la part du d
´
ebiteur.’ Somewhat oddly, though, art. 1184, code civil,
which is concerned with the availability of judicial termination of a bilateral contract
on the ground of the debtor’s serious non-performance, assumes that the injured
party can force the debtor to perform his obligation if this is possible: art. 1184 al. 2.
81

‘Le cr
´
eancier peut aussi, en cas d’inex
´
ecution,
ˆ
etre autoris
´
e
`
a faire ex
´
ecuter lui-m
ˆ
eme
l’obligation aux d
´
epens du d
´
ebiteur.’
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450 simon whittaker
include it in this discussion is that article 1144 clearly provides a system
of control for the actual achievement of the debtor’s prestation (andinthis
sense performance) by someone other than himself, this someone being
either the creditor himself or a third party. Originally, the provision, which
was included in the Civil Code only on the suggestion of the Tribunal
d’appel of Montpellier,
82

was seen as a qualification on the principle laid
down in article 1142, as it provides a judicial mechanism by which the
creditor of a contractual obligation may receive the exact performance
(prestation) that is due to him, even if this does not come from the debtor
himself. This being the case, those jurists who believed that the nature
of obligations argued in favour of a court being able (in principle) to
order their performance, saw support for their view in article 1144 (and in
article 1143, which concerns judicial orders of destruction of things made
in contravention of a negative obligation). As a result, article 1142 came
to be seen as providing for the exception (where performance is physically
or morally impossible) and article 1144 came to be seen as an example
of ex
´
ecution en nature which applied to obligations de faire, even though
article 1144 does not involve the debtor in being ordered to perform his
obligation. Here, then, ex
´
ecution en nature is ‘performance in kind’ only
from the point of view of the creditor.
2. Significant features of article 1144,
code civil
There are three particular further features of article 1144 to which I wish
to draw attention.
(a) Mise en demeure
First, in principle a creditor must put the debtor on notice to perform
(mise en demeure) and then go to court to ask for authorisation to have
the debtor’s obligation performed by someone other than the debtor. It
is available to a creditor only as regards obligations whose performance
by a person other than the debtor is properly possible; this excludes obli-
gations which are personal to the debtor or which concern the supply

of ascertained property owned by the debtor.
83
Before 1991, a creditor
might have been so authorised by a court and then find himself without
82
P. W
´
ery, L’ex
´
ecution forc
´
ee en nature des obligations contractuelles non p
´
ecuniaires (1993), 88,
notes that the facult
´
e de remplacement was not discussed by Pothier as a general
mechanism: ibid., 66–7.
83
Ph. Simler, ‘Classification des obligations, Distinction des obligations de donner, de
faire et de ne pas faire’, Juris-Classeur civil, arts. 1136
`
a 1145, 28. For an example of a
contract of supply of ascertained property, see Com. 20 Jan. 1976, D 1976 Somm. 36.
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performance of another’s obligation 451
actual recourse against the debtor (if the latter became insolvent). In that
year article 1144 was amended to provide that the court may order the
debtor to provide the money in advance of the commissioning of the

performance by a third party.
84
While recourse to court may seem an un-
necessarily delaying element in the process, French civil procedure does
possess an accelerated procedure for urgent cases before the juge des r
´
ef
´
er
´
es,
a procedure much used in relation to article 1144 of the Civil Code.
85
(b) The requirement of judicial decision
Secondly, while it has been argued that as a form of ex
´
ecution en nature the
creditor should have a right to demand authorisation,
86
the courts recog-
nise in themselves a discretion as to whether or not it should be awarded.
87
In practice what this means is that instead of authorising third-party per-
formance, a court may give time to the debtor to perform himself,
88
may
order the debtor to perform the contract (if appropriate, backed up with
astreintes) or simply award the creditor damages.
89
If the creditor is autho-

rised to have the obligation performed at the debtor’s expense, then, once
this has occurred, the debtor is released from his obligation (even though
the contract is not terminated).
90
Clearly, this discretion gives the courts
considerable power to control the situations in which the creditor may
substitute a third party’s performance for the debtor’s. For, as P. W
´
ery has
observed, when a third party is substituted to performance, the debtor is
ousted from his own obligation, from the performance of which he may
have been counting on benefiting.
91
In this respect, there is a clear relationship with the Civil Code’s atti-
tude to termination of bilateral contracts on the ground of a party’s breach
(r
´
esolution), for article 1184 provides that the injured party must in princi-
ple ask the court to terminate the contract and it expressly recognises
in the court a discretion to give the debtor more time to perform if
84
Loi no. 91-650 of 9 July 1991, art. 82.
85
Y. Chartier note to Tribunal de grande instance, Dunkerque, 3 Oct. 1984, GP
1985.1.154.
86
For the competing views, see W
´
ery, L’ex
´

ecution forc
´
ee, 326 ff. especially at 333.
87
Simler, ‘Classification des obligations’, no. 139, 29 ‘Le juge saisi d’une telle demande
d’autorisation appr
´
ecie son opportunit
´
e’. W
´
ery, L’ex
´
ecution forc
´
ee, 329–30 notes Civ. 20
Dec. 1820 S 1819–1821.349 as the first decision to this effect, the Court stating that
‘les articles invoqu
´
es du Code civil et particuli
`
erement l’article 1142 [sci. 1144] sont
conc¸us en termes facultatifs qui laissent aux juges le pouvoir d’adopter le mode
d’indemnit
´
e qui leur paraˆıt le plus juste et le plus favorable
`
a l’int
´
er

ˆ
et des parties.’
88
Simler, ‘Classification des obligations’, no. 136, 28.
89
Ibid., no. 139, 29, citing Req 23 Mar. 1909, DP 1910.1.343.
90
W
´
ery, L’ex
´
ecution forc
´
ee, no. 188, 261.
91
Ibid., no. 199, 274.
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452 simon whittaker
appropriate, even when the seriousness of the debtor’s breach would oth-
erwise justify the termination of the contract.
92
The Cour de cassation
has held that where the debtor offers to perform, the lower courts will
normally refuse r
´
esolution unless they consider the offer to perform too
late.
93
The facult

´
e de remplacement therefore has in common with r
´
esolution
judiciaire the ousting of the debtor from his own performance and both
are subjected to judicial control. In my view, what unites articles 1144 and
1184 is a concern to protect the debtor’s interest in performing, an inter-
est which in the context of the procedure of offres r
´
eelles is even sometimes
put in terms of the debtor’s right to perform.
94
The principal (and very important) exception to the requirement of judi-
cial decision in relation to termination of a contract for non-performance
is the recognition of express contract terms (known as clauses r
´
esolutoires),
which give the injured party a right to terminate the contract. Such a
term has the advantage from the injured party’s point of view of avoid-
ing the judicial discretion which goes with the need to have recourse
to court, and not merely the delay and expense of doing so.
95
However,
there is no mention in the French texts of a practice or discussion as to
the effectiveness of clauses de remplacement, by which a party is contractu-
ally entitled to have the debtor’s obligation performed without recourse
to court,
96
and there are instead three other types of exception: first, a
creditor need not go to court in cases of urgency (that is, greater urgency

than even the accelerated civil procedures can satisfy); secondly, in cases
of commercial sales, both seller and buyer may go into the market and
sell or buy if they are let down by the other party; and thirdly, legislation
allows specific instances where the creditor may arrange a substitute per-
formance of his own volition.
97
Of the latter two, it can be said that
92
Art. 1184 al. 3, code civil.
93
Civ. (1) 17 May 1954, GP 1954.2.82.
94
For an older example, see M. Planiol, Trait
´
e
´
el
´
ementaire de droit civil (6th edn, 1912),
vol. II 150. For more recent use, see Terr
´
e, Simler and Lequette, 1004; F. Kernaleguen,
‘Offres de paiement et consignation’, Juris-Classeur civil, art. 1257
`
a 1264, 3; Robin, ‘La
mora creditoris’, 608. For the procedure of offres r
´
eelles, see above, 438.
95
Terr

´
e, Simler and Lequette, Les obligations, 485. The courts have recognised that such a
contractual right to terminate must be exercised in good faith, on which see
Whittaker, ‘Obligations’, 353. Such a clause in a consumer contract is subject to a
test of fairness under art. L 132-1 Code de la consommation (implementing in French
law Council Directive 93/13/EC of 5 April 1993 concerning unfair terms in consumer
contracts).
96
Cf. the position in Belgian law, where clauses de remplacement are current both in
private and administrative law contracts: W
´
ery, ‘L’ex
´
ecution forc
´
ee, no. 204 ff., pp. 281 ff.
97
For these, see Simler, ‘Classification des obligations’, nos. 140–1, 29. A special
legislative example may be found in arts 1792–6 al. 4, code civil relating to the
garantie de parfait ach
`
evement in contrats d’entreprises.
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performance of another’s obligation 453
either commercial needs (and commercial practice) or other special con-
siderations justify the potentially prejudicial effect on the debtor’s right
to perform. The exception on the ground of urgency is more interesting;
while the French case law here is far from systematic, the general view is
that it will apply only where the expenses thereby incurred by the debtor

in securing substitute performance are ‘urgent, indispensable and effected
in the most economical way’.
98
What this means in practice is that if the
creditor of an obligation considers the matter to be urgent and wishes
to procure substitute performance elsewhere, he may do so, but risks (i)
being told subsequently by a court when he seeks to recover his expenses
from the debtor as damages that the situation was not in fact urgent or
that the expenses were not indispensable or sufficiently economical and
(ii) the debtor deciding in the meanwhile to tender performance himself
(though the latter possibility may be avoided if the creditor is able to ex-
ercise a right to terminate the contract arising under an express contract
term).
99
The French courts are therefore able to verify whether the debtor
should in the circumstances be deprived of his right to perform; this is
effected either by prior or subsequent judicial control.
In this way, French courts are able in the context of article 1144 to
protect the debtor’s interest by reference to criteria similar but by no
means identical to those found in article 1236 and paiement by a third
party. The judicial discretion in relation to the facult
´
e de remplacement may
be seen as performing a similar function to the requirement of ‘utility’ as
regards recovery by a third party in gestion d’affaires, discharge having been
effected under article 1236: in both situations, a central concern is the
need to protect the debtor’s interests, while at the same time relieving him
from further performance.
100
In both, the debtor’s attitude is significant: if

the debtor forbids paiement by a third party, then the latter cannot recover
under gestion d’affaires; if the debtor offers to perform himself, a court will
not authorise remplacement nor is it likely to think justifiable a creditor’s
unilateral recourse to substitute performance.
However, there are clearly considerable differences between the respec-
tive domains of articles 1236 and 1144. Article 1236 is concerned with the
effect on performance of any type of obligation by a third party (whether
or not authorised by the debtor): while there is no exclusion of third-party
98
Soc. 7 Dec. 1951, D 1952.144 and see Malaurie and Ayn
`
es, Droit civil, Les
obligations, 592–3.
99
There may be a further way in which the creditor may avoid this latter difficulty,
for it has been said that the urgency (if it is exists) also justifies rejection by the
creditor of any offer by the debtor to perform: Simler, ‘Classification des obligations’,
no. 140, 29.
100
See above, 443–4.
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454 simon whittaker
intervention at the request of the creditor, the system which it creates ap-
plies only to performance undertaken in order to discharge the debtor
vis-
`
a-vis the creditor by use of the third party’s own resources (and not the
creditor’s).
101

As to consequential recourse, under article 1236 it is the
third party who may be entitled to recover in respect of the substitute
performance, whereas in the case of article 1144 it is the creditor, for
the cost of obtaining substitute performance by the third party.
Article 1236 of the Civil Code distinguishes between performance by in-
terested and non-interested third parties, this accounting in part for the
different grounds of recourse, either by way of subrogation by operation
of law or an independent right of recourse.
102
Moreover, if recovery after
paiement under article 1236 is based on gestion d’affaires, then the third
party must be found to be acting on the basis of a limited altruism: not
entirely in his own interest, but, on the other hand, not so generously as
to be not looking for any indemnity. While the law governing the facult
´
ede
remplacement recognises that the creditor does have an interest in procur-
ing a substitute performance in the absence of performance by the debtor,
it denies the creditor a right to do so; instead, the creditor’s interest in
procuring substitute performance is balanced by the courts against the
debtor’s interest in performing himself.
(c) Obligations de faire
Finally, while paiement for the purposes of article 1236 is not restricted
to payments of money, this is the performance typical of third parties
who act neither from their own interest nor with the debtor’s author-
ity and also the typical context in which the availability of recourse by
the third party based on gestion d’affaires (or, indeed, enrichissement sans
cause) arises. By contrast, the facult
´
e de remplacement is restricted to con-

tractual obligations de faire. While they may sometimes include obligations
to pay money,
103
in practice article 1144 is concerned with substitute per-
formances for obligations to deliver generic property other than money
and obligations to perform services. French law treats the enforcement
of money obligations to a distinct regime, providing for the recovery of
interest at a legally determined rate but also giving a discretion to courts
to allow the debtor time to pay.
104
So it is not meaningless to suggest that
101
Above, 440–1.
102
See above, 439 ff.
103
Simler, ‘Classification des obligations’, no. 91, 20.
104
Art. 1153, code civil (as amended) provides the general rules for payment of interest
for delay in payment of a money sum: exceptions are made where the debtor is in
bad faith and in the context of commercial law and suretyship. Arts. 1244-1–1244-3
code civil (as amended in 1991) give to the court a general discretion to allow a debtor
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performance of another’s obligation 455
a creditor of a money obligation should be able to obtain ‘performance’
from a third party by way of a loan (at agreed interest), with the expenses
thereby incurred by the creditor to be paid by the debtor, but such a pro-
cedure would disrupt this legal regime, which balances the interests of
creditor and debtor of sums of money.

3. The position in English law contrasted
English law knows no technical equivalent of the facult
´
e de remplacement
and its starting point for the remedies available on breach by a debtor
of his obligation is fundamentally different. As with French law, English
law recognises the right of a creditor of a money obligation to have it
enforced, this being put in contractual terms as a matter of the action
for the agreed contract price – ‘specific performance’ at common law.
However, while there is nothing to stop a creditor of a money obligation
from going into the market and obtaining ‘substitute performance’ from a
third party by way of a loan at interest, English law has traditionally taken
a restrictive attitude to recovery of such an expense against the debtor.
The general common-law rule is that no interest is recoverable for delay in
payment of a debt,
105
but interest may be stipulated and the courts enjoy
by statute a considerable power as to the award of interest.
106
Moreover,
the courts have accepted that a creditor may be able to recover damages
for breach of contract for loss incurred by obtaining money at interest
owing to the debtor’s lateness in paying, as long as this loss was ‘within
the reasonable contemplation of the parties’ given the debtor’s knowledge
of the creditor’s particular circumstances.
107
As regards all other positive obligations, English law’s starting point is in
damages. It is still generally true that specific performance is not available
where damages are an adequate remedy, although a somewhat more flexi-
ble approach has at times been taken, depending on the circumstances.

108
Now in many cases damages are indeed an adequate remedy, because the
of a money obligation time to pay (a d
´
elai de gr
ˆ
ace) of up to two years, this discretion
being exercised taking into consideration the situation of the debtor, the needs of
the creditor, the relative good or bad faith of the parties and their circumstances
more generally (such as age or health): Starck, Roland and Boyer, R
´
egime g
´
en
´
eral,89ff.
105
Treitel, Law of Contract, 924 ff.
106
As regards interest on judgment debts, this is now contained in the Supreme Court
Act 1981, s. 35(A). As regards interest on commercial debts before judgment, see the
Late Payment of Commercial Debts (Interest) Act 1998.
107
These phrases describe the so-called second limb of the test of remoteness of damage
of the rule in Hadley v. Baxendale (1854) 9 Ex 341. An example of recovery in this type
of situation may be found in Wadsworth v. Lydall [1981] 1 WLR 598.
108
See Treitel, Law of Contract, 949 ff. and see Co-operative Insurance Society Ltd v. Argyll
Stores (Holdings) Ltd [1997] 2 WLR 898 at 903 per Lord Hoffmann.
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456 simon whittaker
law allows a creditor to go out into the market and obtain a substitute
performance for the debtor by way of mitigation of his own damage when
it is reasonable to do so; indeed, if he does not do so, he will lose the right
to compensation for the loss which he suffers as a result of the debtor’s
breach.
109
In this way English law gives a direct incentive to a creditor to
obtain third-party performance of a debtor’s obligation and, if a creditor
does mitigate in this way, he does indeed receive what he was owed un-
der the obligation (the prestation, in French terms), although he does not
receive it from the debtor.
The advantage of the English approach here, by contrast with the
French, is that the creditor does not even in principle have to wait for
judicial authorisation to obtain third-party performance and this avoids
the inconvenience, expense and delay of judicial proceedings. On the other
hand, the disadvantage is that, having engaged a third party, a creditor
risks not being able to recover the costs of substitute performance. Such
a failure to recover may be caused by the debtor’s insolvency: there is
no possibility, as there is in French law, of being granted an amount
of money in advance from the debtor to cover the cost of obtaining a
substitute. Moreover, a creditor who mitigates his loss also risks a court
subsequently considering his action unreasonable. The absence of prior
authorisation should not disguise the fact that in English law there is
judicial control of the creditor’s substitution of a third party (or himself)
for the debtor, but it is effected a posteriori by a court seised with a claim
by the creditor to recover expenses in the form of damages.
110
The test

here is one of reasonableness, to be assessed at the time of breach (or rea-
sonable notice of breach) rather than in its result. This means that, while
the purpose of the law of mitigation is to reduce the creditor’s losses, if
the creditor’s purported acts of mitigation were reasonable at the time,
he will be able to recover their cost, even if the result increased his own
losses.
111
Here there is again a certain analogy with the traditional requirements
of gestion d’affaires: in mitigating, the creditor acts not merely in his own
109
British Westinghouse Electric and Manufacturing Co. Ltd v. Underground Electric Railways Co. of
London Ltd [1912] AC 673. Another way of looking at mitigation is in causal terms, so
that it can be said that any losses suffered by a creditor after an unreasonable failure
to mitigate are caused by this failure to mitigate, rather than by the debtor’s breach.
110
Of course, this does not mean that all creditors have to go to court to recover
compensation in this way, but any settlement agreed to between the debtor and the
creditor is made on the basis of judicial attitudes to mitigation.
111
Chitty on Contracts, § 27-098.
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performance of another’s obligation 457
interest, but in the interest of the debtor (to reduce his liabilities)
112
and
the application of the reasonableness test could be thought to operate
somewhat like the criterion of utility for the g
´
erant’s intervention. What

is clear, however, is that in English law there is no need for the debtor’s
consent before the creditor is entitled to mitigate (and thereby have the
debtor’s obligation performed by a third party), although a debtor’s own
later offer of due performance may be relevant to the reasonableness of
the creditor’s mitigation.
113
IV. Conclusion
Even if in English law a third party cannot effectively discharge another’s
money obligation without the latter’s authority, a creditor of a non-money
obligation may do so and then recover from the debtor its cost, whether
the debtor approves or not, subject to the ‘reasonableness’ of his doing
so. In French law, by contrast, a third party may perform the debtor’s
prestation even without his consent, but may recover from him only if
he can establish a legal ground for doing so, whether gestion d’affaires or
enrichissement sans cause. On the other hand, in French law in general a
creditor of a contractual obligation to do may not have the obligation
performed by a third party without prior authorisation by the court. In
both these situations, French courts protect the debtor’s right to perform.
In all, under both systems, it is clear that contractual obligations are very
frequently ‘performed’ by third parties: either at the request of the debtor
(whose agents therefore ‘vicariously perform’ the debtor’s obligation) or
at the request of the creditor (on breach and for reward by the creditor,
either with or without the need to have recourse to court).
112
Cf. D. Harris, Remedies in Contract and Tort (1988): ‘[i]t is in the interests of
contract-breakers (as well as of society) that P [the promisee], the person in the best
position to minimise the loss, should be encouraged to try to do so. P should be
indemnified against his expenses in any reasonable attempt to mitigate, since such
attempts are usually successful.’
113

Chitty on Contracts,
§ 26-054.
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17 Payment of another’s debt
Hector L. MacQueen
I. The problem
A parent picks up the unpaid bills of her student child at the end of
the university term. A football club pays off the gambling and other
debts incurred by one of its star players. In my absence from home at
an enrichment conference, my neighbour in my Edinburgh tenement
flat pays my share of the bill for work carried out in the tenement
garden, the underlying contract with the gardener providing that each
resident is to be liable only for a pro-rata share. At least two potential
enrichment questions arise. If the creditors take no further action against
the student or the footballer or me, we three debtors will benefit by the
savings made through not having to pay our debts. The creditors will be
enriched, however, if, despite the interventions of the parent, the club
and the good neighbour, they also continue to seek and recover payment
from, respectively, the student or the footballer or me. In both situations,
the gain is made at the expense of the payer. Can the respective payers
recover either their own expenses or the debtors’ enrichments?
II. Terminology
In the rest of this account the following terminology will be used: the
person who pays another’s debt will be called the payer (P); the recipient
of the payment will be termed the creditor (C); and the person whose debt
is paid by P will be known as the debtor (D).
I am very grateful to Eric Clive and George Gretton for valuable comments on an earlier
draft. Any remaining errors, whether of fact or law, ground recovery only against me.
458

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payment of another’s debt 459
III. The general comparative position
The problem of payment of another’s debt is an area of the law of unjus-
tified enrichment or restitution in which the basic solutions of the Con-
tinental systems and the common law appear to be different. The study
by Daniel Friedmann and Nili Cohen in the International Encyclopaedia of
Comparative Law states:
It has been suggested that under continental law a person who pays another’s
debt is generally entitled to restitution from the debtor. The rule does not of
course apply where payment was made in accordance with a contract with the
debtor, in which case the rights of the payer will be governed by the contract,
or where the payment was intended as a gift to the debtor Historically it was
the doctrine of negotiorum gestio which provided the major vehicle for allowing
reimbursement from the debtor [R]estitution will be allowed by virtue of the
general rule which treats the payment of another’s debt as an established cate-
gory of unjust enrichment Unlike the continental legal systems, the common
law does not recognise a general principle which entitles a person who pays
another’s debt to restitution. Its starting point was that no person can make
himself the creditor of another’s debt against his will or without his consent.
1
Friedmann and Cohen go on after this passage to point out that there
are specific situations in which recovery from the debtor is allowed in the
common law: by way of rights of indemnity or contribution in cases of
liability in solidum; when payments are made under compulsion of law; in
cases of agency of necessity; and where the doctrine of subrogation applies.
Elsewhere in the International Encyclopaedia of Comparative Law, Samuel
Stoljar’s study of negotiorum gestio (unauthorised management or adminis-
tration of another’s affairs in his absence) notes of the situation where P,

acting without authorisation, pays the debt of D to C that it:
affords an excellent illustration of the different conceptions obtaining, respec-
tively, in the civil and the common law. At common law a stranger, paying
another’s debt purely voluntarily and without (what is called) compulsion or
coercion, has no legal recovery, while in the civil law, payment of another’s debt
has been one of the great instances of negotiorum gestio.
Stoljar notes that P’s recovery from D was one of the main examples of the
actio negotiorum gestorum contraria in Roman law, provided that D did not
have a clear interest that the payment should not be made, and that this
has continued to the present day in civilian systems such as Germany and
1
D. Friedmann and N. Cohen, ‘Payment of Another’s Debt’, in: International Encyclopedia
of Comparative Law (1991), vol. X, chap. 10,
§§ 9–10.
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460 hector l. macqueen
France, so long as P acts with the intention of managing D’s affairs and his
intervention is useful. The common law, on the other hand, ‘though far
from inhospitable to ideas of negotiorum gestio, has nevertheless remained,
and largely still remains, deeply reluctant to assist, let alone encourage,
the unsolicited payer’.
2
The different approaches to payment of another’s debt thus nicely illus-
trate the contrasting general characteristics of Continental enrichment
law, together with negotiorum gestio, and common-law restitution, together
with its refusal to recognise any principle akin to negotiorum gestio.The
Continental approach is that the benefit or service must be paid for un-
less there is some legal ground for its retention such as a valid contract or
a gift. It is interventionist and paternalistic, in that one who acts in the

interests of another, even if not asked to do so, is seen to deserve some
protection from the law. The common-law approach is that the enrich-
ment need not be reversed unless there is some additional ‘unjust factor’
in the case. It is individualistic and concerned to protect the security of
transactions. A person who meddles in the affairs of another without that
other’s consent or authorisation acts at his own risk.
The discrepancy in approach to payment of another’s debt reflects other
fundamental differences between the two great legal traditions. The most
significant for present purposes concerns the basic question: in what cir-
cumstances does a third-party payment discharge a debt? Unless D’s debt is
discharged, there can be no question of his being enriched at P’s expense.
Friedmann and Cohen give the following overview:
On the issue whether an unauthorized third party may discharge the debt there
is a fundamental divergence between the Continental and the Anglo-American
legal systems [U]nder the Continental legal systems, where performance need
not be made in person, a third party has the power to fulfil the debtor’s obliga-
tion irrespective of whether he has an interest in discharging the obligation. The
Anglo-American legal system adopts a completely different approach. Its basic
position is that a third party has no power to tender performance, unless he is
authorized by the debtor to do so. Therefore, if a stranger offers to pay another’s
debt, the creditor is not bound to accept it. This rule does not, however, apply to
2
S. J. Stoljar, ‘Negotiorum Gestio’, in: International Encyclopedia of Comparative Law
(1984), vol. X, chap. 17,
§§ 93–133 (quotations at §§ 93, 104). See also generally D. H.
van Zyl, Negotiorum Gestio in South African Law (1985) and R. Zimmermann, The Law of
Obligations: Roman Foundations of the Civilian Tradition (1990, paperback edn 1996),
433–50, for historical and comparative discussion. See further, for critical analysis of
the Anglo-American opposition to negotiorum gestio, H. Dagan, ‘In Defense of the Good
Samaritan’, (1999) 97 Michigan LR 1152.

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payment of another’s debt 461
instances where the unauthorized payment was made by a third party who had
a sufficient interest (as defined by the particular jurisdiction) in the discharge
of the debt. In such an instance, the third party has presumably the power to
tender performance, and in any event his payment, if accepted, discharges the
obligation.
3
The Continental rule springs ultimately from Roman law,
4
and can also
be linked conceptually with the assignability of debt. Once the Roman-
Dutch school had taken the ius commune beyond the idea that obligations
were strictly personal to debtor and creditor and had enabled the creditor
generally to transfer his rights freely to third parties,
5
it became apparent
that the debtor had no right to a particular creditor, and the possibility
of a third party paying the debt and having a corresponding enrichment
claim against the debtor became logical.
6
The common law, on the other
hand, did not recognise general assignability until the fusion of law and
equity in the later nineteenth century, and the further step of allowing
discharge at the hand of an unauthorised third person who would then
have a restitutionary claim against the original debtor has not been taken
since.
Reference to assignation does, however, raise one key problem if P has
a right of action against D. Had C assigned to a third party, D could plead

against the assignee any defences good against the original C – assignatus
utitur iure auctoris. The intervening P is not an assignee, however, and the
obligation under which he claims against D is quite independent of the
original debt. What then becomes of D’s defences in the original debt?
Another version of the same issue arises from the fact that probably any
prescriptive period relating to the original debt will have commenced
before that for the enrichment claim. However, enrichment claims bring
with them their own defences, such as change of position, and, if taken
against P, these may help to protect D from the unavailability of defences
3
Friedmann and Cohen, ‘Payment of Another’s Debt’,
§ 4.
4
Gai. D. 3, 5, 38; Gai. D. 46, 3, 53; Inst. 3, 29 pr.
5
R. Zimmermann, ‘Roman-Dutch Jurisprudence and its Contribution to European
Private Law’, (1992) 66 Tulane LR 1685, 1703–4.
6
Note too that in some legal systems a party may seek specific implement of a
contract by a third party, this being at the direct expense of the original debtor in
the obligation and saving the creditor from having to make a damages claim in
respect of the extra cost of the third party (e.g. in France, art. 1144, code civil). Scots
law could, it is suggested, adopt this approach under the very general provisions
about orders which can be granted in lieu of specific implement under the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1940, s. 1(2).