Law and regulation of force majeure in France

Yes, article 1218 of the French Civil Code.

Article 1218 of the Civil Code states: “In contractual matters, there is force majeure when an event beyond the control of the debtor, which could not reasonably have been foreseen at the time of the conclusion of the contract and which effects cannot be avoided by appropriate measures, prevents performance of his obligation by the debtor.
If the impediment is temporary, the performance of the obligation is suspended unless the resulting delay would justify termination of the contract. If the impediment is permanent, the contract is automatically terminated, and the parties are free from their obligations pursuant to the conditions laid down in articles 1351 and 1351-1.”

Parties are free to regulate force majeure clauses. The legal definition and/or effects of force majeure may be contractually amended by the parties to a contract.

In B2B relationships, parties are free to regulate such clauses within the usual limits of French contract law.
 
In particular, where a clause in a contract extends the scope of force majeure beyond the legal definition in the Civil Code (and where the clause could form part of an exclusion or limitation of liability), this clause would not be upheld if it deprived a debtor’s “essential obligation of its substance” or created a significant imbalance in the rights and obligations of the parties. In both cases, such a clause would be “deemed unwritten” under French law.

If a contract just says you can terminate for “force majeure”, the definition and effects of force majeure detailed in article 1218 of the Civil Code would apply. Accordingly and in such cases, French judges may determine at their discretion whether the force majeure event invoked by the parties satisfies the legal requirements of article 1218 of the Civil Code. 

Yes – in B2C contracts, legislation applicable to “abusive clauses” (art. L.212-1 and seq. of the Consumer Code) would apply.

Accordingly, clauses that define “force majeure” more broadly than the legal definition in the Civil Code may, depending on their wording, be considered abusive if they could be construed as allowing a business to unduly exclude or limit its liability towards a consumer.
In B2C transactions, it is therefore recommended that the scope of the business’ obligations be narrowed rather than extending the scope of the force majeure clause.

There is no such difference under French law. 

However, the question of the enforceability of T&Cs is always a complex issue under French law. For a force majeure clause embodied in T&Cs to be enforceable, the T&Cs must have been communicated to and accepted by the party against whom the clause is being enforced prior to the execution of the contract.

“Neither party shall be liable as a result of any delay or failure to perform its obligations under the contract if and to the extent that such delay or failure is caused by a force majeure event as defined per article 1218 of the Civil code. 

In case of force majeure, the parties shall act in good faith. In particular, the party who is prevented from performing its obligation shall so inform the other party, in writing, within calendars days of the force majeure event. The party who invokes the force majeure shall take all reasonable measures to limit the adverse consequences of the force majeure event for the other party. 

In case of temporary impediment, the performance of the obligations which is impossible due to the force majeure event shall be suspended for the duration of such force majeure event. If the force majeure event lasts more than [X] days, either party may terminate the contract by providing a [30]-day prior written notice to the other party.

In case of permanent impediment, the contract shall be automatically terminated and the parties free from their obligations.”

OR

“Neither party shall be liable as a result of any delay or failure to perform its obligations under the contract if and to the extent that such delay or failure is caused by a force majeure event. The parties expressly agree to exclude the application of article 1218 of the Civil code and to consider that […] shall constitute force majeure events as per this contract.

In case of force majeure, the parties shall act in good faith. In particular, the party who is prevented from performing its obligation shall so inform the other party, in writing, within [X] calendars days of the force majeure event. The party who invokes the force majeure shall take all reasonable measures to limit the adverse consequences of the force majeure event for the other party. 

In case of temporary impediment, the performance of the obligations which is impossible due to the force majeure event shall be suspended for the duration of such force majeure event. If the force majeure event lasts more than [X] days, either party may terminate the contract by providing a [30]-day prior written notice to the other party.

In case of permanent impediment, the contract shall be automatically terminated and the parties free from their obligations.”

The following clause could be used:

“Neither party shall be liable as a result of any delay or failure to perform its obligations under the contract if and to the extent that such delay or failure is caused by a force majeure event. The parties expressly agree to exclude the application of article 1218 of the Civil code and to […] shall constitute force majeure events as per this contract. In particular, the parties agree that epidemics and pandemics (especially the Covid-19 pandemic) shall constitute force majeure events pursuant to this contract.

In case of force majeure, the parties shall act in good faith. In particular, the party who is prevented from performing its obligation shall so inform the other party, in writing, within [X] calendars days of the force majeure event. The party who invokes the force majeure shall take all reasonable measures to limit the adverse consequences of the force majeure event for the other party. 

In case of temporary impediment, the performance of the obligations which is impossible due to the force majeure event shall be suspended for the duration of such force majeure event. If the force majeure event lasts more than [X] days, either party may terminate the contract by providing a [30]-day prior written notice to the other party.

In case of permanent impediment, the contract shall be automatically terminated and the parties free from their obligations.”

Hardship

If, due to the Coronavirus pandemic, the performance of a contract becomes excessively onerous for a party who did not agree to bear the risks associated with the pandemic, the affected party may request a renegotiation of the contract (however, the party must continue to perform its obligations under the contract during the renegotiation). Such renegotiation would be admissible if the Coronavirus pandemic is considered to be a change of circumstances unforeseeable at the time of execution of the contract (art. 1195 of the Civil Code).

Where the renegotiations fail or the unaffected party refuses the affected party’s request for renegotiation, the parties may agree to terminate the contract or seek judicial intervention. In the absence of an agreement within a reasonable timeframe, a judge may, at the request of one party, amend or terminate the contract at his/her discretion.

Parties are also free to regulate “imprévision” clauses and may exclude the application of article 1195 of the Civil code.

Other contractual remedies

If a party is unable to perform its contractual obligations due to the COVID-19 epidemic, it could also try to invoke the principle of good faith or the “exception d’inexécution” mechanism which allows a party to refuse or suspend the performance of its obligations if the other party does not perform its own obligations, or if it is obvious that it will not do so in due time, and such non-performance is sufficiently serious (art. 1219 and 1220 of the Civil Code).

As the date of conclusion of a contract is often an element taken into account by French judges to determine whether force majeure clauses may be validly invoked, it is likely that “standard” force majeure clauses (i.e. clauses solely referring to article 1218 of the Civil code) embodied in contracts signed since the beginning of 2020 would be deemed inapplicable to the Coronavirus Covid-19 pandemic.