Force Majeure and contractual inexecutions DUE TO COVID 19

Hoche Avocats – Commercial Department Newsletter – March 17, 2020  (Link to the Newsletter)

In French law, COVID 19 should be qualified as a case of force majeure

in commercial contracts: conditions and consequences

As a preliminary,

Check your contracts. What is the applicable law?
If it is French law, is there a “Force Majeure” clause and what does it say?
In most cases, nothing is said about it in the contract.
It is therefore necessary to refer to the texts and to interpret them.
COVID 19 must allow companies to oppose Force Majeure.

Force Majeure AND COVID 19

Article 1218 of the Civil Code defines contractual force majeure.

This article is applicable to contracts in force since October 1rst, 2016. However, it is mainly based on previous case-law, so that it should also be possible to apply to it the terms of this article which states: ‘Force majeure in contractual matters exists where 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 whose effects cannot be avoided by appropriate measures, prevents the performance of his obligation by the debtor. If the impediment is temporary, performance of the obligation shall be suspended unless the resulting delay justifies termination of the contract. If the impediment is permanent, the contract is terminated by operation of law and the parties are discharged from their obligations under the conditions provided for in articles 1351 and 1351-1. »