Force Majeure

Force majeure is the concept used for extraordinary events preventing a debtor from performing. Natural disasters, epidemics, war, terrorism, general strikes and prohibitive decisions by public authorities are typical examples.

Elements

According to doctrine and the Court of Cassation, an event qualifies as force majeure if it:

• Occurs outside the debtor’s sphere of activity
• Was unforeseeable
• Was unavoidable and could not be prevented
• Makes performance impossible or temporarily prevents it
• Is causally linked to the impediment to performance.

Statutory Consequences

• Permanent impossibility: If performance becomes impossible for reasons not attributable to the debtor, the obligation is extinguished. In bilateral contracts, the debtor cannot claim the counter-performance and must return anything received under unjust enrichment rules (TCO Article 136).
• Temporary impossibility: The debtor is not in default while the impediment lasts; the duty to perform continues once it ends.
• Partial impossibility: The debtor is released only from the part that became impossible.

Force Majeure Clauses

Because the statutory rules are general, detailed clauses are recommended in commercial contracts:

• Definition and examples of force majeure
• Notice period and form
• Duty to mitigate
• Suspension period and right to terminate if exceeded
• Whether force majeure applies to payment obligations

Difference from Hardship

Force majeure makes performance impossible. Where an extraordinary event only makes performance excessively onerous — for example an unexpected cost increase — the rules on hardship apply and adaptation of the contract may be sought.

Proof

The party relying on force majeure must prove the event, its effect on performance and that it complied with notice obligations. Decisions of public authorities, chamber of commerce certificates and correspondence are important.