Some reflections on force majeure and unpredictability: common law tools to deal with Covid-19?

1- On force majeure

Since the beginning of the COVID-19 epidemic, many economic actors have been thinking of invoking force majeure as an excuse for non-performance of their contractual obligations.

However, force majeure is based on two cumulative criteria that are particularly difficult to apply, so that they have never, to date, been used during an epidemic.

The first criterion of application requires that the event cannot reasonably have been foreseen at the date of conclusion of the contract.

The difficulty in the case of COVID-19 is therefore to determine when (event) the epidemic could be recognized (known) by the parties as having an impact on the contract.

This difficulty of anticipation is all the greater since it is not so much the epidemic itself that constitutes the impediment, but rather the measures taken to curb its spread, measures which moreover continue to evolve both in time and space (green and red zones, for example).

But the main obstacle to force majeure lies in the second criterion of application: irresistibility.

It will have to be demonstrated that the coronavirus justifies a total inability to perform its obligation. However, it is obvious that it is always possible to find the “appropriate measures” under Article 1218 of the Civil Code to provide the service provided for.

This is why, rather than the existence or not of theoretical alternative measures, the debate should focus on the very real additional costs generated by this virus.

However, since the reform of the law of obligations in 2016, there is an instrument which responds precisely to this question: contingency.

2- On the unexpected

Article 1195 of the Civil Code
If a change in circumstances unforeseeable at the time of the conclusion of the contract makes performance excessively onerous for a party who had not agreed to assume the risk, the latter may request a renegotiation of the contract from its co-contractor“.

If the unpredictability of force majeure is found, it is no longer an absolute, intrinsic unpredictability, but only the “change of circumstances” which must be unforeseeable, which is much easier to establish.

Similarly, as the Administrative Judge has noted since 1916, the excessively onerous cost can be easily shown by an operating deficit or even an overrun of the forecast price.

Admittedly, unforeseen circumstances only permit a “renegotiation” of the contract during which the contract is supposed to continue to be performed.

However, administrative litigation, where the same obligation to continue has long been imposed, shows that the plaintiff can be released from it if circumstances require it to be stopped or if the obstacle cannot be overcome. Moreover, this renegotiation is only one step prior to resolution.

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