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Non-Performance and the Change of Circumstances under French Law
- Edited by Ewoud Hondius, Marta Santos Silva, Andrea Nicolussi, Pablo Salvador Coderch, Christiane Wendehorst, Fryderyk Zoll
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- Book:
- Coronavirus and the Law in Europe
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 01 August 2021, pp 509-526
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Summary
A major issue raised by the COVID-19 crisis is whether it constitutes a lawful ground for non-performance or modification of contracts. French law traditionally took a very strict view on the binding force of contracts and acknowledged only force majeure as a cause of discharge of contract. However, the reform of contract law passed in 2016 has introduced some changes and there are now several provisions in the code civil which may justify a discharge or an adaptation of contract in the case of a major change of circumstances. The COVID-19 crisis is now putting these provisions to test.
INTRODUCTION
The impact of the COVID-19 crisis on the national legal systems in general, and the French one in particular, is considerable. In the context of this limited contribution, however, only the impact on ongoing private law contracts shall be considered. More precisely, this contribution will focus on one of the major contract law questions raised by the crisis, namely whether it constitutes a lawful ground for non-performance of contracts.
At first sight, the answer should be no. The binding force of contracts is a basic tenet of French law, which is now formulated very clearly at the beginning of the section of the Civil Code (code civil) devoted to contracts: “Contracts which are lawfully formed have the binding force of legislation for those who have made them” (Art 1103 of the new code civil). As a matter of principle, a change of circumstances, however unfavourable to one party to a contract, should not lead to a discharge of that contract. A party must therefore perform his obligations under the contract, at whatever cost to him. If he does not, the other party will be entitled to a remedy, and may, in particular, claim damages for any loss suffered as a result of non-performance. There is hardly a legal rule without an exception, however, and there are cases where French law does accept a relaxation of the binding force of contracts and where a change of circumstances may lead to the contract being discharged or amended. But do these cases cover the specific circumstances of the current COVID-19 crisis?
As in other countries, emergency legislation has been adopted in France in the context of the crisis, but it deals only with specific contracts.
France
- Edited by Israel Gilead, Bjarte Askeland
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- Book:
- Prescription in Tort Law
- Published by:
- Intersentia
- Published online:
- 22 December 2020
- Print publication:
- 14 August 2020, pp 309-338
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Summary
INTRODUCTION
The French code civil, which was adopted in 1804 and marks the birth of modern French law, inherited the concept of prescription from Roman law and earlier French law. Prescription was the subject of title XX of the third book of the code civil (which deals mostly with the law of obligations, inheritance law and patrimonial relations within the family). Following the jus commune, prescription in the original code civil covered ‘acquisitive‘ prescription (prescription acquisitive or usucapion) and ‘extinctive‘ prescription (prescription extinctive). As time went by, French rules on prescription grew more and more complex and the Code's provisions ceased to reflect adequately the state of the law on this issue. Quite apart from the fact that the bringing together of acquisitive and extinctive prescription was increasingly criticised, a number of special (extinctive) prescription periods were created by the legislator, mostly outside the code civil, which resulted in an extraordinary variety of applicable prescription periods. Case law also developed a distinction, barely sketched in the Code, between ‘real‘ prescription periods and‘foreclosure‘(forclusion) periods, the main difference between the two being that the latter, unlike the former, cannot be suspended.
As a result of this complexity, and like in many other Western countries, more and more lawyers called for a reform of the law of prescription at the end of the 20th century. It was initially thought that such reform would be part of a wider reform of the law of obligations, but, quite surprisingly, the French Parliament took the initiative to reform prescription law on a stand-alone basis in 2008, and not to wait for this wider reform. This has been achieved through loi no 2008-561 of 17 June 2008, which came into force immediately.
This statute deals both with acquisitive and extinctive prescription but separates them more clearly than the Code formerly did. Both types of prescription are now the subject of two different titles in the code civil (title XX for extinctive prescription and title XXI for acquisitive prescription) and have only the name ‘prescription‘ in common.
France
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- By Jean-Sébastien Borghetti, Professor of Private Law, University Panthéon-Assas (Paris II), France
- Edited by Miquel Martin-Casals
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- Book:
- The Borderlines of Tort Law
- Published by:
- Intersentia
- Published online:
- 15 November 2019
- Print publication:
- 29 August 2019, pp 131-170
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Summary
QUESTIONS
TRACING THE BORDERLINES
A. DISTINCTION BETWEEN TORT AND CONTRACT
Contract (contrat) and tort (responsabilité délictuelle) are primarily regarded as two different sources of obligations, following the traditional presentation of the jus commune, which was carried over into the Civil Code. Within the third book of the original Code, which was actually somewhat of a melting pot, the third part dealt with ‘contracts and contractual obligations in general’ (‘Des contrats et des obligations conventionnelles en général’), whereas the fourth one dealt with ‘undertakings formed without a convention’ (‘Des engagements qui se forment sans convention’). Tort belonged to the latter, along with ‘quasi contracts’ (‘quasi-contrats’), which are basically unjust enrichment and negotiorum gestio .
The recent reform of the French law of obligations, which, however, does not cover civil liability, has clarified the presentation of the various sources of obligations, without putting into question the distinction between tort and contract. The first part of the third book of the Civil Code is now explicitly devoted to the ‘sources of obligations’ and deals successively with contract, with ‘extra-contractual liability’, ie liability in tort, and with ‘other sources of obligations’ (unjust enrichment, ‘payment not owed’, and negotiorum gestio).
The French Government is now preparing the reform of civil liability law. A consultation was organised in 2016 on the basis of draft project published in April 2016, and a revised draft reform bill on civil liability, le projet réforme du droit de la responsabilité civile (Projet), was published in March 2017. Since then, nothing much has happened, but there is still hope that Parliament will discuss this project at the end of 2019 or at the beginning of 2020. The draft published in 2017 nevertheless deserves to be mentioned, because it runs counter to traditional solutions of French liability law on a few points. One of them is that the draft deals with liability in tort (responsabilité délictuelle ou extracontractuelle) and liability in contract (responsabilité contractuelle) as a whole.
France
- from Part II
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- By Jean-Sébastien Borghetti, Professor of Private Law, University Panthéon-Assas (Paris II), France
- Edited by Piotr Machnikowski
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- Book:
- European Product Liability
- Published by:
- Intersentia
- Published online:
- 15 December 2017
- Print publication:
- 02 August 2016, pp 205-236
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Summary
SOURCES OF LAW AND THEIR EVOLUTION
PRODUCT LIABILITY IN FRANCE BEFORE 1985
There was no specific regulation of product liability in France before the implementation of Directive 85/374/EC. The courts had managed to impose strict liability on producers and suppliers of defective products, however, using existing provisions of the Civil Code (CC).
When consumer goods started to cause a signifi cant number of accidents, most victims relied on contract law, and more specifi cally on garantie des vices cachés, in order to obtain compensation from manufacturers and/ or sellers. Garantie des vices cachés (latent defects guarantee; art 1641 ff CC) is of Roman origin and had equivalents in most continental civil codes drafted during the 19th century. The French version provides that when the buyer of a defective product discovers the defect, he has the choice between rescinding the sale or paying a discounted price. As in Roman law, this action was initially intended to remedy the insufficient quality of the thing sold, rather than its insufficient safety. However, the CC provides that when the defect causes injuries or damage distinct from a diminution in value of the thing sold, the buyer can receive damages, but only if the seller knew of the defect (art 1645 CC). This could have posed a formidable obstacle to the compensation of victims, had it not been removed by the Cour de cassation, France's supreme judicial court. In the 1960s, the Cour de cassation decided that if the seller is a dealer by profession, there is an irrebuttable presumption that he knew of the existence of the defect of the product he sold. Should the defect in the thing sold cause death, injuries or damage to the buyer, the seller is thus bound to compensate him, even if it was materially impossible for the seller to discover the defect.
In the 1960s, garantie des vices cachés thus became a major weapon in the hands of victims of defective products. They could base a claim on garantie des vices cachés, provided they had bought the damaging product.
1 - Litigation on hepatitis B vaccination and demyelinating diseases in France
- Edited by Miquel Martín-Casals, Diego M. Papayannis
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- Book:
- Uncertain Causation in Tort Law
- Published online:
- 05 November 2015
- Print publication:
- 19 November 2015, pp 11-42
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