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Force majeure: a debtor’s privilege

Cass. 1e civ. 25. November 2020, n° 19-21.060, Chaîne thermale du Soleil, ECLI:FR:CCAS:2020:C100714

Since the 2016 reform of the law of obligations, the new Article 1218 para. 1 of the Civil Code only provides for force majeure for the debtor of an obligation.
The question has been raised whether a creditor can also invoke it, if due to unforeseeable, irresistible events beyond his control, he is no longer able to receive the benefit of his claim.

Both certain isolated cases and the development of certain specific norms protecting parties considered weaker, for example in the Tourism Code, have legitimately raised the question of the use of article 1218 for the benefit of the creditor, by way of an analogy.

This solution was rejected by the Court of Cassation in this decision, which is the first to take up the issue since the 2016 reform.

Two solutions are then available to the creditor. The first is to attempt a renegotiation on the basis of the theory of unforeseeability (Article 1195). If this does not succeed, the contract may be rescinded or the parties may agree to ask the judge to adapt the contract. If the debtor voluntarily drags out the renegotiation without justification, it is possible to unilaterally ask the judge to revise the contract or to terminate it on the terms he chooses.

The alternative is to fix a force majeure clause in the initial contract for the benefit of both parties, Article 1218 being a mere provision. Care must be taken here to ensure that the parties’ balance is maintained so that the clause is not deemed to be unwritten. The drafting of the contract as a whole must allow such a clause to exist. Ad fontes is at your disposal to draft your contracts and thus give you the benefit of its extensive experience in this area.