Introduction

‘Agreements lawfully entered into have the force of law for those who have made them.’ The principle of pacta sunt servanda so famously enshrined in Article 1134, al 1, of the Code civil is regularly considered a cornerstone of French contract law – which has been repeatedly upheld by the Cour de cassation in the most uncompromising terms. Its decision to refuse any judicial intervention for imprevision to account for supervening circumstances, however severely they may have disturbed the contractual balance, is a particularly well-known example, which has made the Canal de Craponne by far the best-known waterway amongst French law students.

One of the reasons for the decision's notoriety stems from the fact that its rigour is almost unheard of in other European legal systems (arguably with the exception of Belgium). It is therefore hardly surprising that it has not only instigated a seemingly endless stream of scholarly publications and academic discussion – while also leaving room for the occasional decision to cast doubts on the court's otherwise strict adherence to the principle – but has also been addressed in all recent reform projects as well as in loi n° 2015–177 du 16 fevrier 2015, the respective projet d'ordonnance, and ordonnance n° 2016–131 du 10 fevrier 2016.

Reforming this area of law required the French legislator (who, in this case, was actually the French government) to strike a new balance between, on the one hand, the principle of pacta sunt servanda and the legal certainty that is usually ascribed to it and, on the other hand, the idea of contractual solidarity and fairness that lies at the foundation of every exception for imprevision admitted elsewhere. The controversial comments to which the proposed provision has given raise bear testimony to the difficulty of that task.

Yet, many other European systems have faced this challenge before, coming to a variety of different solutions, which has been described as ‘revealing all the difficulties of the construction of a ius commune of contract’. But the diversity of approaches does not only make imprevision one of the most interesting aspects of the French reform, especially for the present conference, the viable balance that has been found in many legal systems also seems to have provided useful guidance during the French reform process and will continue to enrich its academic discussion.