Concurrent delay in France

Jurisdiction without developed jurisprudence

1. Is concurrent delay a well developed and understood concept?

In French law, the concept is not well developed but it is understood: during the execution of a contract of construction, several causes of delay can happen at the same time and be the origin of the same period of delay.

2. Is there a generally understood and accepted definition of concurrent delay and when it arises?

There is not a generally accepted definition of this concept (either in statutory rules or case law).

3. How is the issue of concurrent delay treated?

In French law, the delay is governed by contract law, by the contract and by case law. Each kind of delay is governed by its own rules.

Exemptions governed by contract law

The first case of exemption for the contractor in case of delay is an act of God (article 1218 of the French Civil Code). It is an unforeseeable, irresistible and external event. If the event is temporary, the execution of the contract is suspended and the contractor gets an extension of time (except if the delay is so important that the contract must be terminate). If the event is definitive, the contract is terminated without other formality.

Exemptions governed by the contract

Legitimate causes of suspension of time can be decided by the parties. They create their own acts of God in the contract. These legitimate causes of suspension lead to an extension of time for the contractor. For example, bad weather, public holiday, strike, war, etc. 

Sanctions governed by the contract and by contract law

If the delay is not caused by any aforementioned cause of exemption, it is a contractual fault by the contractor governed by the French Civil Code and the contract.

The obligation to finish the works on time is essential in that an incorrect behaviour of the contractor has not to be proved.

The contractor is liable for damages in case of a contractual fault that causes a delay (article 1231-1 of the French Civil Code). The owner has to prove a fault, an injury and a causal link between the fault and the injury. 

A penalty clause can be stipulated in the contract in case of delay. In such a case, an injury doesn’t have to be proved because the penalty clause stipulates a sanction for delay

4. Are there any general principles that apply to the treatment of concurrent delay?

A contractual fault can happen at the same time as an act of God or as a legitimate cause of suspension of time and cause simultaneously the same period of delay. In this case, the contractor is not liable for damages because the owner can’t prove an injury. Indeed, the delay would have occurred anyway because of the act of God or legitimate cause of suspension. However, the contractor is liable for damages if the owner prove a separate injury (i.e. an extra period of delay due to the contractual fault).

Similarly, if the two causes of suspension of time happen at the same time and cause the same period of delay, the contractor gets only one extension of time and the penalty clause does not apply. However, if the two causes of suspension of time happen at the same time and don’t cause the same period of delay, the contractor gets an extension of time (act of God or legitimate cause of suspension) but also has to pay damages (if the fault causes a longer delay).

A proper analysis of entitlement to extension of time and any associated loss and expense in each case must involve a careful consideration of the wording of the relevant clauses and an assessment of the (possibly different) tests of causation that should be applied to them.

5. How is the question of evidence as to causes and periods of delay dealt with?

The contractor who claims an exonerating cause of delay must prove it. For instance, the contract can stipulate that the cause of delay is proved by the architect’s certificate. As regards weather, the contractor can use certificates from Météo France (the national weather bureau).

6. Would a contract term which provides that one or other party will take the risk of concurrent delay be effective in your jurisdiction?

In a case of concurrent contractual fault and an act of God, a clause which provides that the Contractor would not be entitled to an EOT is very unusual in practice (but possible).

7. The SCL Protocol scenario

An event that is at the Contractor’s risk under the contract (a “Contractor Risk Event”) will result in five weeks delay to completion, delaying the contract completion date from 21 January to 25 February. Independently and a few weeks later, a variation is instructed on behalf of the Employer which, in the absence of the preceding Contractor Risk Event, would result in delay to completion from 1 February to 14 February.

7.1 Is the Contractor entitled to an extension of time in respect of the variation? If so, for how long?

The possibility of obtaining an extension of time depends on the possibility of executing the variation instructed on behalf of the Employer regardless of the occurrence of an event that is at the Contractor's risk under the contract.

Indeed, if it is possible to execute the variation instructed on behalf of the Employer in masked time (i.e. without adding to the existing delay due to the Contractor’s risk), the Contractor will not get an extension of time. If that is not possible, the contractor will get an extension of time of two weeks from 25 February (or for whatever other period the execution of the variation adds to the existing delay due to the Contractor’s risk).

7.2 Assuming the Contractor is contractually entitled in principle to recover delay-related costs relating to the variation, for what period (if any) could it recover those delay-related costs?

In French Law, a variation of the project instructed on behalf of the Employer constitutes additional work and the contractor is paid for that.

If the variation is performed in “masked time” (i.e. all works after the Works Variation can be completed by 25 February) and so no EOT is given, the Contractor would not be entitled to claim general delay costs. Nevertheless, the contractor shall retain the right to claim other costs caused specifically by the variation (i.e. cost of extra materials…).

If however, the variation cannot be realized in “masked time” and results in works completion delay, the Contractor will be entitled to claim delay-related costs starting from 26 February until completion of the works (i.e. the additional delay caused by the variation).