About 'changed circumstances', 'imprévision' and 'commercial impractibility' in the light of the new art. 1195 of the French civil code

Seghedi Camelia , In-house Counsel International Contracts and Public Tenders , JCDecaux

The French civil code established in 1804 (also known as Code Napoleon) promoted the autonomy of the parties and minimal intervention of the judge in the performance of contractual obligations. This approach was transposed into article 1134 (new articles 1103 and 1104 after the 2016 reform) stating that agreements legally entered into operate as law for those who engaged in them and they must be performed in good faith. This principle known as pacta sunt servanda was generally recognized by the Roman law and by old religious writings such as the Old Testament and the Qur’an , and is considered a guarantee that the parties are bound by their agreements thus ensuring the legal security of transactions. However in time its strict application proved unreasonable and during the 12th and 13th centuries the canonists and the ecclesiastical courts formulated the exception of clausula rebus sic stantibus, meaning that contracts must be performed as they were agreed as long as the conditions considered by the parties at the time of the agreement remain unchanged. This exception was initially applied in cases of usury and its use was subsequently extended by courts, becoming widely accepted by the 18th century. Seen as an "escape clause" allowing an exception to the general rule of the sanctity of contracts and thus inconsistent with the predominant philosophical theory of liberalism and the concept of laissez faire, laissez passer, dominant in the 18th century, clausula rebus sic stantibus was abandoned and pacta sunt servanda became instead a general principle of the French civil code.

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Regulation Media March 2017 Vol.10, No. 38, Winter 2017

Seghedi Camelia

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Collectif, Libres propos sur la réforme du droit des contrats. Analyse des principales innovations de l'Ordonnance du 10 février 2016, LexisNexis, 2016 FUCCI, Frederick R., Hardship and Changed Circumstances as Grounds for Adjustment or Non-Performance of Contracts Practical Considerations in International Infrastructure Investment and Finance; American Bar Association, Section of International Law, Spring Meeting – April 2006 New York GUIOMARD, Pascale / CHEVRIER, Eric (Avec la collaboration de), 1er octobre 2016 - Entrée en vigueur de la Réforme du droit des obligations, Dalloz 2016 HONDIUS Ewoud / GRIGOLEIT Hans Christoph, Unexpected Circumstances in European Contract Law; Cambridge University Press, March 2011 LUTZI, Tobias, Introducing imprévision into French contract law. Lessons to be learned from the German codification in 2002 MASKOW, Dietrich, Hardship and Force Majeure, 40 Am.J.Comp.L. 1992, RICHER, Laurent, Droit des contrats administratifs, LGDJ 2016 RIMKE, Joern, Force majeure and hardship: Application in international trade practice with specific regard to the CISG and the UNIDROIT Principles of International Commercial Contracts, Kluwer (1999-2000) WALTER, Paula, Commercial Impracticability in Contracts, St John’s Law Review, June 2012 ZACCARIA, Elena Christine, The Effects of Changed Circumstances in International Commercial Trade, International Trade and Business Law Review, 2004 UNIDROIT Principles 2010 United Nations Convention on Contracts for the International Sale of Goods, 1980 Nota: Biography subject to change.

Regulation Media March 2017 Vol.10, No. 38, Winter 2017