Introduction

The current geopolitical landscape, marked by a succession of international crises, is increasingly impacting global economic exchanges. These disruptions affect key sectors such as transportation, oil and gas, supply chains for raw materials and international trade as a whole. In this context, contractual commitments may come under significant strain: some obligations become impossible to perform, while others, though still feasible, become excessively onerous.

French law provides for two primary mechanisms to address this situation: force majeure and the doctrine of hardship (imprévision).

This article adopts a comparative approach. It sets out the French statutory framework governing these mechanisms, focusing in particular on what distinguishes them from similar mechanisms existing under English law.

To start with, under French law, both mechanisms are provided for by statute and apply as a matter of law in the absence of contractual provisions to the contrary. Nonetheless, parties retain broad contractual freedom, allowing them to adjust, supplement or expressly exclude these mechanisms by contract.

Force majeure (Article 1218 of the French Civil Code)

Under French law, a party claiming force majeure in contractual matters needs to establish that four cumulative conditions are met:

• the event is beyond the control of the debtor (condition of externality);
• the event could not reasonably have been foreseen at the time the contract was concluded (condition of unpredictability/unforeseeability). The moment at which this condition is assessed, that is at the date of contract formation, is particularly important in the context of prolonged crises (such as pandemics or long-term geopolitical conflicts);
• the effects of the event cannot be avoided by appropriate measures (condition of irresistibility); and
• the event prevents the performance of a contractual obligation. Such prevention may be temporary, in which case performance is suspended, or permanent, in which case the contract is automatically terminated. In any event, there must be a genuine impossibility of performance, as opposed to a situation where performance remains possible but more burdensome.

Under English law, unlike French law, force majeure does not apply as a matter of law. If parties wish to provide for force majeure, they must provide for it in their contract.

Hardship (imprévision) (Article 1195 of the French Civil Code)

Introduced into French commercial law in 2016, the doctrine of hardship addresses situations where performance remains possible but becomes excessively onerous.

A party claiming hardship must show that the following three conditions are satisfied:

• a change in circumstances unforeseeable at the time of contracting. The doctrine does not apply where the event occurred prior to the contract but only became apparent afterwards;
• such a change renders performance excessively burdensome for one party. This excessive burden is assessed in light of a “fundamental disruption of the contractual equilibrium” (CA Paris, 30 mars 2022, n°20/02033), a notion that can be somewhat uncertain in practical application; and
• the party had not agreed to assume such risk.

Pursuant to Article 1195 of the French Civil Code, where these conditions are met and there is hardship, the affected party may ask the other party to renegotiate the contract. The renegotiation does not suspend enforcement of the contract.

Article 1195 of the French Civil Code provides for the situation where the parties fail to renegotiate or agree on new contractual terms as follows:

In the event of refusal or failure to renegotiate, the parties may agree to terminate the contract, on the date and under the terms they so determine, or may jointly request the court to adapt it. Failing agreement within a reasonable time, the court may, at the request of a party, amend or terminate the contract on the date and under the terms it sets.

In practice, this statutory regime of hardship presents significant uncertainties and impracticalities, such as:

• The concept of excessive onerousness remains imprecise, and the statutory provisions provide limited guidance. The threshold set by the statutory provisions as construed by French courts tends to be fairly high.
• Parties must substantiate their claims with detailed financial and accounting evidence, and the courts typically find that a mere increase in costs is insufficient to qualify.
• Ultimately, judicial intervention, if any, occurs as a last resort, which may render application of this mechanism lengthy and uncertain.

As a result, it is common for parties to a contract governed by French law to exclude or amend the French statutory regime of hardship. This places the parties in a situation similar to that under English law, where hardship does not exist as a matter of law and must be provided for by a specific contractual provision.

Application in a geopolitical context

In the current geopolitical environment, the question arises as to whether an international armed conflict may qualify as force majeure or hardship under French law. There is no simple answer, as the analysis depends heavily on the specific circumstances of each case and each contract.

The French Supreme Court for commercial matters (Cour de cassation) has made it clear that a state of war does not, in itself, automatically constitute force majeure (Cass, req, 25 janvier 1922). Each of the relevant conditions must therefore be examined on a case-by-case basis.

Case law illustrates this nuanced approach. In one instance, the Cour de cassation upheld a finding of force majeure in favour of a freight commissioner due to disruptions in air transport caused by the Gulf War. It held that, even if the situation had been predictable, it was irresistible insofar as it rendered performance impossible (Cass. com., 16 March 1999, n° 97-11.428).

Conversely, in another case relating to the Gulf War, the Cour de cassation refused to recognise force majeure, finding that a travel contract to Marrakech had not become impossible to perform. The circumstances invoked were not considered irresistible, particularly as no proven risk affected the destination. The contract cancellation could therefore not be justified on this basis (Cass, Civ 1, 8 December 1998, n° 96-17.811).

These decisions demonstrate that it is not the event itself that is decisive, but rather its concrete effects on the performance of the contract.

The importance and practice of contractual clauses

Under French law, both force majeure and hardship are default rules (suppletive), and the parties are at liberty to exclude, modify, or supplement them in their contract. However – and this marks a key difference with English law – these regimes apply automatically where the contract is silent. By contrast, English law does not provide for equivalent statutory mechanisms. In the absence of specific contractual clauses, parties cannot rely on force majeure or hardship. Where matters of law are concerned, English law knows only the narrow doctrine of frustration.

Given the highly fact-specific nature of case law, including force majeure and/or hardship clauses in contracts is strongly advisable, even under French law. Subject to certain exceptions (notably in consumer contracts), such clauses are valid and widely used in practice.

Parties may, for example, supplement or replace the statutory definitions by including a list, either exhaustive or illustrative, of events deemed to constitute force majeure or hardship. To avoid ambiguity, it is advisable to specify whether such events automatically qualify as force majeure or hardship upon occurrence, or whether they must still meet the statutory criteria. One of the statutory criteria often excluded is foreseeability.

Conversely, where the parties wish to exclude the application of these regimes under French law, they must do so expressly. Such exclusion cannot be inferred from the mere silence of the contract.

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