Unpaid invoices: the payment clauses to check before a delay gets costly
Legal payment terms, late-payment penalties, retention of title: what really protects against non-payment.
An overly long payment term, an unquantified late-payment penalty, no retention-of-title clause: these are often drafting details that determine how much room to maneuver you actually have in case of non-payment.
Quick check: Analyze your contract on subblink — payment terms, penalties, recovery guarantees.
1. Legal payment terms (B2B)
The problem
A 90-day payment term, slipped into the terms and conditions of a supplier in a position of strength, can exceed the legal maximum without the client noticing.
Legal reminder (France)
The maximum payment term is 60 net days, or 45 days end of month, from the invoice issue date (Art. L441-10 of the Commercial Code, LME Act).
Legal reminder (Switzerland)
There is no maximum legal term imposed under Swiss law for B2B contracts; in the absence of a contractual term, a default interest of 5% per year applies automatically from the due date (Art. 104 CO).
What subblink detects
The payment term mentioned in the contract is compared to the legal cap applicable per the identified jurisdiction, and flagged in case of overrun.
2. Late-payment penalties: the legal minimum, not the maximum
The problem
A contract that mentions no late-payment penalty isn't necessarily unprotected — but the absence of an explicit clause complicates the practical implementation of recovery.
Legal reminder (France)
The minimum rate for late-payment penalties is set at the European Central Bank rate plus 10 points, with a minimum flat-rate recovery compensation of €40 (Art. L441-10 II Commercial Code).
What subblink detects
The presence of a late-payment penalty clause and its rate, compared to the applicable legal minimum.
3. Retention-of-title clause
The problem
Without a written retention-of-title clause agreed before delivery, the seller loses the right to reclaim unpaid goods in case of the buyer's insolvency proceedings.
Legal reminder (France)
The retention-of-title clause must be agreed in writing, at the latest at the time of delivery, to be enforceable (Art. 2367 Civil Code).
Legal reminder (Switzerland)
The reservation of title is only enforceable against third parties if registered in the reservation-of-title register at the buyer's domicile (Art. 715 CC).
What subblink detects
The explicit presence of a retention-of-title clause is flagged, as well as its timing relative to delivery if this information appears in the text.
4. Payment guarantees for risky contracts
The problem
A contract with a new client, with no payment history, no guarantee: the risk of non-payment rests entirely on trust.
How to protect yourself
- Bank guarantee or on-demand guarantee for high-value contracts
- Deposit at signing, rather than full payment at the end of the service
- Factoring (assignment of receivables to a third-party financier) to transfer the non-payment risk
Checklist: securing a contract against unpaid invoices
- Payment term compliant with the applicable legal cap
- Late-payment penalties present and compliant with the legal minimum rate
- Retention-of-title clause agreed in writing before delivery
- Payment guarantee considered for high-risk contracts
- Jurisdiction and competent court identified in case of dispute
Analyze your contract on subblink before sending it.
FAQ: unpaid invoices and payment clauses
Is a payment term exceeding 60 days automatically void?
Under French law, exceeding the legal cap is subject to administrative sanctions, but does not necessarily void the contract itself. A compliant clause remains preferable to avoid any dispute.
Does the late-payment penalty apply automatically?
Under French law, yes, from the due date, even without prior formal notice, as long as the legal minimum rate is respected or no abusively lower contractual rate has been set.
What's the difference between a late-payment penalty and a penalty clause?
The late-payment penalty sanctions a payment delay at a rate often set by law. A penalty clause is a broader contractual sanction, provided for any breach (delay, non-conformity), potentially revisable by a judge if manifestly excessive or negligible.
Does Swiss law regulate limitation-of-liability clauses?
Art. 100 CO in principle allows excluding or limiting contractual liability, except in case of intent or gross negligence, where any limiting clause is void.
Conclusion
Non-payment is best managed with a well-drafted contract upfront rather than a recovery procedure afterward.
Payment term, penalties, retention of title: three clauses to check systematically before signing.