Introducing Imprévision into French Contract Law - A Paradigm Shift in Comparative Perspective

Abstract

After more than a century of academic debate, the reform of French contract law — the last step of which was taken with ordonnance n° 2016-131 du 10 fevrier 2016 — is going to finally overrule the Cour de cassation’s infamous decision in Canal de Craponne, according to which even a 300-year-old contract cannot be modified to accommodate a change of circumstances that has rendered performance significantly more onerous for one of the parties. In order to assess the new provision for ‘imprevision’, this paper draws a comparison between French, English, and German law. It identifies three conceptually different approaches to the underlying tension between pacta sunt servanda and contractual fairness: the traditional French approach, which does not admit any exception to pacta sunt servanda, the English approach, which does accommodate a limited number of supervening circumstances by extending the existing exception for force majeure, and the German approach, which admits a specific exception for the problem of ‘imprevision’. The paper argues that the French reform is to be lauded for marking a paradigm shift from one of these approaches to another and critically discusses the forms this shift has taken in the projet d’ordonnance of 2015 and the final ordonnance of February 2016.This paper was presented in 2015 at the 20th Ius Commune Congress in Leuven. It has been amended in February 2016 to reflect the changes that ordonnance n° 2016-131 has brought to the part of the reform that this paper discusses.