be it paying back a pay undue ?

Question of social right. It may happen that one pays illegitimate to be paid to an employee. For example, the payment of net of gross pay, or, more complex but less frequent, the regularization, in the context of the annualisation of working time with smoothing of salary, giving rise to an overpayment.

The Court of cassation has recently made a decision twice, the 14 march and 5 April, on applications from employers, who demanded the return of compensation paid, according to them, mistakenly. The high court of justice has recalled the conditions and means of the implementation of a restitution of compensation to undue. Namely, that the civil code has for a long time named “the repetition of the undue,” and that, in the new article 1302, became a ” restitution “, in the particular case of a solvens (who has paid) the employer and a accipiens (the one who received the payment) employee.

First case, first lesson : a Court of appeal ruled that an employer could not require the employee to refund a seniority bonus paid to wrong, because it was not established that the employer had been kept in ignorance of the payment of this premium. The judgment was broken on the following argument : an employee may not prevent a restitution of compensation payable, unless he can demonstrate that the disputed amounts were paid to him by the employer in the intention of the liberal party.


The second case deals with the modalities of recovery of the amounts paid. The employer can directly deduct from the wages the sums wrong ? This extinction simultaneous reciprocal obligations between two people is possible, but limited, because of the characteristic food of the salary, income of active solidarity (RSA) for a single person : it is the principle of unseizability and non-transferability partial salary. And this compensation must also…

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