The definition of force majeure is set out in article 1218 of the Civil Code, which provides that there is force majeure in contractual matters when an event beyond the control of the debtor, which could not reasonably be foreseen at the time of the conclusion of the contract and the effects of which cannot be avoided by appropriate measures, prevents the debtor from performing his or her obligation.
In other words, a case of force majeure meets three cumulative conditions:
- Unpredictability, the event could not reasonably have been foreseen at the time the contract was concluded;
- Irresistibility, the debtor could not prevent the effects of the event;
- Externality, the event must be beyond the debtor’s control.
Could force majeure be retained for the covid19 pandemic?
A first decision of the CA of Colmar (6th ch, March 12, 2020 n°20/01098) has just ruled on the qualification of the force majeure of the epidemic of Covid19.
In this case, the appellant, Mr G, asked the court to overturn the decision to place him in administrative detention.
However, he could not be brought to court to appear “due to exceptional and inescapable circumstances, having the nature of force majeure, relating to the current epidemic of Covid19 “.
Mr. G is in fact detained in a detention center where there is an individual with symptoms of the disease.
This decision therefore qualifies the risk of contamination by Covid19 as force majeure, not just the contamination itself.
If the lessons of this decision are applied to the case of Covid19 , the debtor who wishes to terminate his/her contract or not perform his/her obligation in nature will have to prove that he/she was unable to anticipate the sanitary or containment obligations (which is quite possible given the novelty of the measure).
In addition, it will have to demonstrate that it has not been or is not possible for it to find other solutions.
Finally, it will be necessary to establish the causal link between its inability to pay or perform in nature and the Covid epidemic.19 For example, it will be necessary to show, with accounting records, that its cash flow difficulties did indeed arise during the epidemic.
A second decision of the CA of Douai on March 5, 2020 goes in this direction, concluding that a flight to Italy having been cancelled by the Italian authorities because of the Covid epidemic19 is a circumstance of force majeure.
Regarding diseases, the jurisprudence has already had the opportunity to rule on this subject:
The Court of Cassation has already been asked this question in a Mittenaere decision of the Plenary Assembly dated April 14, 2006 n°02-11.168 concerning the order of a machine to a manufacturer whose state of health had resulted in delaying the delivery date.
In this case, a new date was set and the new delivery date was not met.
The manufacturer died of cancer a few months later without the machine having been delivered to the recipient. The recipient therefore sued the inheritors for payment of damages and termination of the contract.
The Court of Cassation rejected his claim, arguing that no damages are due when, as a result of force majeure, the debtor was prevented from giving or doing what he was obliged to do. The Court of Cassation recalls the characteristics of force majeure and emphasizes the fact that the physical incapacity resulting from the infection occurred after the contract was concluded.
Regarding epidemics, the case law is heterogenous :
Regarding the presence of the Chikungunya virus in a hotel, the CA of Basse Terre (ruling of December 17, 2018 n°17/00739) considered that the conditions of force majeure were not met since the disease was generally manageable (no irresistibility).
On November 22, 2010, the CA of Nancy issued a ruling along the same lines concerning dengue fever in Martinique.
In the case of Covid 19, these solutions must be qualified in view of the speed with which the virus has developed and the containment measures adopted, as well as the high mortality due to its mode of transmission.
Nevertheless, it should be noted that Bruno Lemaire, Minister of Economy and Finance, declared on February 28 that Covid19 would be “considered as a case of force majeure for companies”.
In addition, the theory of unpredictability could also be considered. Indeed, article 1195 of the Civil Code provides that “if a change in circumstances unpredictable at the time of the conclusion of the contract renders its performance excessively onerous for a party who had not agreed to assume the risk, that party may request a renegotiation of the contract from his co-contractor. It shall continue to perform its obligations during the renegotiation.”
Unlike force majeure, which causes the fulfillment of the contract to be impossible, the criteria of the theory of unpredictable events cause its fulfillment to be prejudicial.
However, as this provision is not of public order, it can be set aside by agreement of the parties.