unnecessary to put the debtor in default, though that effect it has. It deprives the court of any discretion in decreeing dissolution or granting the defendant delay. The only question the court can consider is whether the contract has been broken.37

Except in the case of contracts which are expressly made subject to dissolution de plein droit, the plaintiff has no absolute right to have the contract dissolved. If the failure to perform is merely delay, and the contract still admits of substantial performance, 38 the defendant, if he sees fit, may perform, pending the action, at any time before judgment of dissolution is pronounced. Indeed, by taking an appeal, he may perform after that time, that is, until judgment on appeal.39 By the

movable property the better view is that these last words are unnecessary: Cass. 29 Nov. 1886, Jl. du Pal. 1887, 1, 137 and note.

The contracting parties may also agree that the contract shall not be dissolved for non-performance, or only for non-performance of a certain kind. Larombière, III. 113.

37 Larombière, III. 155; Aubry-Rau, Cours de Droit Civil Français (4th ed.), IV. § 302, b; Cass. 2 July, 1860, Jl. du Pal. 1860, 1101. But it does not make application to the court unnecessary to secure dissolution, Aubry-Rau, IV. § 302, b; Larombière, III. 149, though this view was maintained by the older writers. See authorities cited above

Besides the case where it is part of the contract that the dissolution shall take place de plein droit, in sales of chattel property the seller has, by a particular provision of the Code (Art. 1657), an absolute right to have the contract dissolved without delay. This provision is only in favor of the seller. A buyer has not a corresponding right in case of the seller's default. In such sales, if goods ought to be taken by the buyer in instalments, failure to take one instalment gives rise to a right to have the whole contract dis

solved, as it is held to be indivisible for this purpose. Larombière, III. 147, 148.

38 In Cass. 13 Feb. 1872, Jl. du Pal. 1872, 133, there was involved a contract for the manufacture of cloth. The manufacturer was prevented by war from furnishing the goods at the stipulated time. The buyer sued for dissolution of the contract with damages while the manufacturer claimed to be wholly released from the contract by impossibility. It was held that the parties not having made it appear that the time was essential, it could be performed after the interruption caused by the war had ceased, and specific performance was ordered.

39 Larombière, III. 144; Demolombe, Traité des Contrats, II., §§ 515 et seq. In Holland, however, it is held that by putting a delinquent party to a contract formally in default, the other party acquires a right to have the contract dissolved, which cannot be destroyed by subsequent performance. See a decision of the High Court of the Netherlands, 14 Dec. 1893, Jl. du Pal. 1894, 4, 29.

So in Louisiana it is held that after a party has been put in mora by written demand followed by the filing of a suit to rescind, an offer of performance

express provision too of the article of the code under consideration (1184), the court may grant such delay as it sees fit, within which the defendant may perform.40 This may be done by delaying to give judgment, or judgment may be given with a proviso that it shall not take effect for a certain time, or subject to the condition that the defendant fail to perform within a certain time.41 But one delay is allowable, however. The court cannot extend the period originally granted.*

§ 902. Delayed or imperfect performance.

42

The nature of some contracts is such that, though there is no express provision for the case in the Code Civil, delayed performance or offer of it need not be accepted and will not always avert the dissolution of the contract. If the contract relates to a mercantile matter,43 especially if it is for the purchase and sale of commodities which fluctuate in price from day to day, or if for any reason the exact time specified in the contract is of importance, a stricter rule prevails. In such cases the normal and proper course to be taken by a party to a contract who wishes to avoid it because of the failure of his co-contractor to perform at the time specified in the contract, is immediately to make formal demand for performance, and, not receiving it, to give notice that if performance is not rendered within a stated short time, the dissolution of the contract will be claimed. The time thus fixed is not necessarily conclusive; the court may grant such delay as seems to it proper under the circumstances, 45 and although no time is fixed in the formal demand for performance, subsequent offers to perform not made within a time reasonable under all the circumstances of the case may be refused and dissolution of the contract insisted upon.46 Nevertheless comes too late. Clover v. Gottlieb, 50 La. Ann. 568, 23 So. 459.

40 There is a special provision to the same effect in regard to sales of immovable property, contained in Art. 1655 of the Code Civil.

41 Larombière, III. 145, 146.

42 Ibid.

43 Paris, 12 Aug. 1870, Jl. du Pal. 1872, 756.

44 Paris, 30 Jan. 1873, summarized in Sirey & Gilbert's annotated Code Civil, 33 of note to Arts. 16091611.

45 Bordeaux, 8 Aug. 1829, summarized in ¶ 17 of the note above referred to; Cass. 15 Apr. 1845, Jl. du Pal. 1845, 1, 591.

46 Paris, 12 Aug. 1870, Jl. du Pal. 1872, 756.

it is well to specify in the demand the extreme period of time within which performance will be accepted.47 In contracts for the delivery of merchandise twenty-four hours is fixed by custom as a reasonable time.48

Analogous to the case of performance delayed beyond the stipulated time is the case of an offer of performance, imperfect or incomplete, from other causes than delay. It is laid down that where the agreement consists of a positive engagement to do or give a particular thing, the performance being single and indivisible, the agreement may be dissolved if the engagement is not exactly fulfilled." But a slight deficiency or excess in the amount of a quantity of goods forming the subjectmatter of a contract is held not to warrant its dissolution.50

If the defendant fails to perform seasonably or within any period of delay granted by the court, the contract must ordinarily be dissolved.51 Though the defendant's non-performance was due to supervening impossibility, which would

47 See Cass. 13 June, 1876, Jl. du Pal. 1877, 413.

48 Paris, 12 Aug. 1870, Jl. du Pal. 1872, 756.

49 Larombière, III. 96; Aubry-Rau, IV. 83, § 302. Cf. Demolombe, II., §§ 498, 499. In Cass. 12 Apr. 1843, Jl. du Pal. 1843, 2, 8, the plaintiff was held entitled to the dissolution of a contract to buy a steam engine bccause the defendant delivered it without a smoke-stack. It was held immaterial that the deficiency could be easily supplied and that therefore damages would be a sufficient indemnity. In Cass. 4 Dec. 1871, Jl. du Pal. 1871, 589, it was held of no avail that the seller after having made an offer of defective goods, subsequently put them in satisfactory condition and offered them again. In a later stage of the same case, Aix, 8 Aug. 1872, Jl. du Pal. 1873, 1088, the court refused to give effect to a custom by which goods if above a minimum quality, though below that stipulated for in the contract, must be accepted by the buyer, with a money indemnity

for the deficiency in quality. If goods are to be made according to sample, non-conformity to the sample affords ground for dissolving the bargain. Rouen, 22 July, 1872, Jl. du Pal. 1873, 1086; Cass. 20 Jan. 1873, Jl. du Pal. 1873, 1161; Rouen, 26 July, 1878, J. du Pal. 1878, 1127.

The principle seems to have limits, however. In Cass. 4 Mar. 1872, Jl. du Pal. 1872, 1140, there was involved a contract for sub-letting an apartment and shop, and for the sale of certain articles of furniture in the shop. One of these articles was not delivered. It was held that the agreement for the sale of the furniture was merely an accessory stipulation, and failure to deliver one article did not afford ground for dissolution of the bargain.

50 Cass. 12 Feb. 1877, Jl. du Pal. 1877, 782. See also ¶37 of the notes to Arts. 1612, 1613 in the annotated Code Civil of Sirey and Gilbert.

51 If the contract is divisible in its nature the court may in its discretion dissolve it as to part only. Cass. 26 Apr. 1870, Jl. du Pal. 1870, 663.

excuse him from liability in damages, the plaintiff is none the less entitled to such dissolution.52 If, however, by accidental mischance it had become impossible for the performance to be made at the stipulated time merely, the cause of the delay would be taken into consideration by the court and greater leniency in granting delay would be shown than if the delay were wilful. But in such a case if by special agreement or the nature of the case performance must necessarily take place, if at all, at the time originally fixed, delay, though caused by accident, is fatal.53

Even though the plaintiff himself was guilty of the first breach of the contract, and this breach was the reason that the defendant subsequently committed a breach, the plaintiff may have the contract dissolved. The defendant may in such a case, it is said, suspend the execution of his agreement until the plaintiff performs, but he may not be guilty of a positive infraction of the agreement, if he does not want it dissolved. If he is guilty of such a positive infraction, the plaintiff may have the contract dissolved though he is liable in damages for his own prior breach of contract. 54

§ 903. Part performance and immaterial breach.

There is nothing in the words of article 1184 to indicate that part performance of a contract by the party ultimately guilty of a breach affects the right of the other party to have the contract dissolved. But the obvious harshness of applying

52 Larombière, III. 92; Aubry-Rau, IV. § 302, 83, and note 82; Demolombe, II. § 497; Cass. 30 Apr. 1878, Jl. du Pal. 1879, 493; Cass. 14 April, 1891, Jl. du Pal. 1894, 1, 391. In the case last cited the defendant, the lessee of a vineyard, was prevented from carrying out the stipulations of the lease by an invasion of phylloxera. The lessor was held entitled to have the lease dissolved.

53 Larombière, III. 93.

54 Larombière, III. 102; Cass. 8 Jan. 1850, Jl. du Pal. 1850, 2, 100. In this case the plaintiff, the owner of mining rights, had entered into a con

tract with the defendant, by which the defendant was given the right to carry on mining operations but agreed among other things not to do so before being authorized by the prefect-this authorization being essential by law. The plaintiff, among other things, agreed to take the steps necessary to secure the authorization. He subsequently refused to do so, and the defendant thereupon began to mine. It was held that the plaintiff was entitled to have the contract dissolved, but without prejudice to the defendant's claim for damages.

the rule universally has led to exceptions, the extent of which has not been and perhaps from the nature of the case cannot be very exactly defined, though some definition has been attempted. On the one hand it has been said that non-performance of a stipulation which is purely accessory and independent of the principal contract cannot afford ground for dissolution, such non-performance being sufficiently made good by damages. 55 Also if the infraction is of a purely negative stipulation the judge will weigh the gravity of the breach, and if not of serious importance will allow the injured party damages only. 56 And in any case a breach of trifling importance will not justify a claim for dissolution.57 Further, if the performance has not become impossible, either because time was of the essence of the contract or for other reason, the court by granting the defendant a delay may avoid a dissolution of the contract. 58 Perhaps the most difficult case is where the infraction in question is a serious one and of an essential part of the agreement, but where so much that cannot be undone has been done under the contract, that serious injustice would arise if the contract were dissolved. It seems probable that the court would deal with such a case as equity required, without allowing itself to be hampered by general rules. 59

55 Cass. 29 Nov. 1865, Jl. du Pal. 1866, 32; Amiens, 3 Aug. 1881, Jl. du Pal. 1882, 1, 695. Demolombe, II., §§ 498-500, is of opinion that even in such a case the court may grant dissolution, but that it has discretion to refuse.

56 Cass. 26 May, 1868, Jl. du Pal. 1868, 890. In this case the defendant had sold the plaintiff his stock-in-trade and business, agreeing not to compete. He was subsequently guilty of some acts of competition which caused little damage. The court held that the plaintiff could not have the bargain dissolved. See also the case stated infra, n. 59.

57 Larombière, III. 95. Cass. 29 Nov. 1865, Jl. du Pal. 1866, 32; Cass. 10 June, 1856, Jl. du Pal. 1857, 867.

68 Larombière, III. 96. Mere delay in the absence of special circumstances, it is said, cannot in the nature of things be better repaired than by performance, even though it be tardy, if nothing in the agreement forbids.

59 Paris, 21 Apr. 1896, Jl. du Pal. 1897, 2, 9. In this case the Théâtre Français sought an injunction and conditionally the dissolution of its contract with Coquelin the elder. By this contract the actor had bound himself, among other things, to act nowhere except at the Théâtre Français. The latter agreed among other things to pay the actor a retiring pension after a specified period. The contract was carried out on both sides for more than twenty years, and Coquelin had become entitled to his retiring pension,