Hardship and Modification (or 'Revision') of the Contract

Abstract

Does the binding force of contracts hinder their modification in case of hardship? The very idea of modifying a contract should hardship occur (translation of the French term imprevision) has been debated for a very long time. Even if asking this question seems like fighting a rearguard battle, it deserves nevertheless to be reexamined in the light of the private law harmonization movement that currently takes place. If some states have from a general point of view adopted such a principle, the way it is implemented can vary a great deal from one state to the other, which might in turn adversely affect any attempt at bringing closer the different national rules applicable in this area. Moreover, it should be pointed out that opposition to the possibility of modifying a contract in case of hardship can be found in Civil law countries as well as in Common law countries, scholars disagreeing more particularly on the right for the courts to modify the contract, their intervention being indeed perceived as an undue interference. The question of being or not able to modify a contract in case of hardship reveals then perfectly well how difficult it is to build up a common core of principles of contract law. It seems therefore appropriate not only to examine the legitimacy of such a mechanism but also to investigate the coherence of the rules applicable. It is submitted here that, if the modification of contracts in case of hardship must be encouraged, it is not only through the general adoption of the principle (section I) but also through the harmonization of its implementation’s conditions (section II).