Introduction

Unforeseen circumstances pose one of the perennial dilemmas of private law: if due to unforseen circumstances performance becomes impracticable or even impossible, is a non-performing party then still liable out of the contract? Or might he be excused? In other words, should precedence be given to rules based on the adage pacta sunt servanda, or rather to excuses based on clausula rebus sic stantibus or other good faith principles? The French legislature clearly struggled with this dilemma in its recent adjustment of the Code civil, as can be seen from the Projet d'ordonnance of 2015 and the ordonnance no 2016–131 of 10 February 2016. Before, a seemingly endless parade of scholars, both within and outside France, discussed the current solution in the Code civil to the problem of unforeseen circumstances, but also the solutions proposed in various draft s, such as the Avant-projet Catala.

In the previous contribution to this volume, Introducing Imprevision into French Contract Law, A Paradigm Shift in Comparative Perspective, Tobias Lutzi not only analysed an impressive amount of French and foreign contemporary scholarship on – the traditional lack of – imprevision in French private law, but also assessed the current, proposed and recently adopted French solutions to commercial impracticability resulting from unforeseen circumstances. For this assessment, he compared the English, German (in particular) and the current, proposed and new French solutions to unforeseen circumstances with each other, thereby highlighting lessons to be learned from the German solution. The focus of Lutzi's comparison is mainly at a conceptual level, namely whether the systems compared offer an adequate exception to rules based on pacta sunt servanda and he argues that the German solution to the problem of unforeseen circumstances – to which the new Article 1195 Code civil will be quite similar – is to be preferred over the English, and the current and previously proposed French solutions.