Yue Tue Fee L.A.R. and anor v JMS Aluminium Ltd 2022 SCJ 107
When is a Mise-en-Demeure not required?
The Supreme Court of Mauritius, sitting in its appellate jurisdiction, brought clarifications on the circumstances in which a Mise-en-Demeure (ie legal notice) would not be required.
In the instant matter, the Supreme Court gave effect to a term in the parties’ contract which dispensed with the need by one party to serve a mise-en-demeure on the other party as a pre-condition to bring proceedings. In so doing, the Supreme Court reaffirmed the terms of Article 1134 of the Mauritian Civil Code which validates parties’ contractual freedom by stating that a contract is the law between the parties.
The Supreme Court went a step further as it held that as a matter of law, the service of a mise-en-demeure was not fatal to a party where:
- doing so would not serve any purpose. This was the scenario in the instant matter as Yee Tue Fee hired another contractor to repair the defective roller shutters in view of the refusal by JMS Aluminium Ltd to do so; and
- the damage being claimed is compensatory in nature as opposed to being moratory.
