Accueil » News and Updates » COVID19 repercussions – Force Majeure

COVID19 repercussions – Force Majeure

27 Jan 2022

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.


Vous aimerez aussi

27 January, 2022

All there is to know about the consignment note

A consignment note is a contract of carriage of goods which will bind the sender of the cargo, the freight forwarder and finally the carrier also called “voiturier”. This contract serves as a(...)

27 January, 2022

Theft of masks – 30 million euros of damage

Trafficking of all kinds developed during the period of confinement in France, particularly around masks, these objects which highly wanted. The police services have dismantled networks of resale of anti-Covid(...)

27 January, 2022

Motor vehicles: a new standard contract on August 1!

Published in the Official Journal on July 4, Decree No. 2020-845, in the title of the standard contract that it institutes, adds a significant element to the standard transport contract. It is thus specified(...)

27 January, 2022

LNG, status and perspectives.

LNG (Liquefied Natural Gas), a fossil energy mainly composed of methane, is currently one of the energy transition solutions that provides a real alternative for ships using fuel oil. This gas makes it(...)

27 January, 2022

COVID19 repercussions – Force Majeure

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(...)

27 January, 2022

COVID19 and its repercussions – Prescription

Beyond the essential health considerations, the Covid19 crisis has tested the entirety of the mechanisms and institutions in place. The legal system has not escaped this crisis and it has been necessary to(...)

27 January, 2022

Stowage: Interview with expert trainer Arnaud Dupasquier

Interview with Arnaud Dupasquier – FCE Stevedoring Arnaud Dupasquieris the founder of the company FCE Arrimage based in Saint Priest (69) which provides training in stowage for transport: road, sea, rail(...)

26 January, 2022

Stowage : Overview and applicable guidelines/standards

The quality of the loading and securing of goods contributes to the safety of road transport and also to the condition of the goods on delivery. According to the available documentation, up to 25% of accidents(...)

26 January, 2022

RCCI File – Genesis of a fire

The fire disaster Among the different types of losses that can be encountered, fire is probably one of the most devastating, as well as one of the most difficult to understand; the fire transforms or even(...)

26 January, 2022

RCCI File – The X-press Pearl Feeder Fire

Factual reminder: On May 20, 2021, the container ship “X-Press Pearl”, a 2,700 TEU feeder commissioned in February 2021, reported a fire while at anchor in Colombo, Sri Lanka. On June 2, 2021,(...)

26 January, 2022

RRCI File – New technologies

The arrival of new technologies enabling a better understanding and visualization of a claim has recently transformed the expertise professions. In the field of RCCI expertise, the use of a scanner is a fast(...)