Force Majeure and Hardship (Imprevision) in French Sales Contracts

Force majeure in French contract law: the statutory definition

Since the 2016 reform of the law of obligations, force majeure france has a single statutory definition that applies to every contract, including a sale of goods. Article 1218 of the Civil Code provides that force majeure exists where an event beyond the debtor's control prevents performance of the obligation, provided that event was not reasonably foreseeable when the contract was concluded and its effects cannot be avoided by appropriate measures. Before you can suspend deliveries, refuse to pay, or walk away, you must be able to show that the situation meets each limb of that test.

The definition rests on three cumulative conditions. First, the event must be beyond the debtor's control (echappe au controle du debiteur) - external to the party invoking it, not something that party caused or could master. Second, it must have been unforeseeable at the moment the contract was concluded; an event the parties could reasonably have anticipated at signing is treated as a risk they accepted. Third, its effects must be unavoidable: even with appropriate measures, the debtor cannot perform. If any one condition is missing, there is no force majeure.

These conditions are assessed at two different moments, and that timing matters. Foreseeability is judged as at the conclusion of the contract, while the ability to avoid the effects is judged at the time of performance. A supplier who signs a supply agreement in the middle of a known crisis cannot later plead that same crisis as force majeure, because it was foreseeable when the pen hit the paper. The courts apply the test strictly and in concreto, looking at the actual bargain and the actual event rather than at generic labels.

The effects of force majeure: suspension, termination and no damages

Once force majeure is established, its effect depends on whether the impediment is temporary or permanent. Article 1218 provides that where the impediment is temporary, performance of the obligation is suspended, unless the resulting delay justifies terminating the contract. Where the impediment is permanent, the contract is terminated by operation of law (de plein droit) and the parties are released, in accordance with the conditions set out in Articles 1351 and 1351-1 on impossibility of performance.

Suspension is the default for a passing obstacle: a blocked port, a temporary export ban, or a plant shut by an unforeseeable and unavoidable event. The obligation is not extinguished; it is put on hold and revives once the impediment lifts. But suspension is not open-ended. If the delay defeats the purpose of the deal - for example a seasonal or time-critical delivery that becomes worthless if late - the contract can be brought to an end even though the impediment was only temporary.

The second major effect concerns damages. Under Article 1231-1, a debtor is liable to pay damages for non-performance or delayed performance unless it proves that performance was prevented by force majeure. Force majeure is therefore the debtor's shield against a damages claim: a seller who cannot deliver, or a buyer who cannot take delivery, because of a qualifying event is released from liability in damages for that failure. The burden of proof lies squarely on the party invoking it.

Two practical points follow. First, force majeure excuses the party who is prevented from performing; it does not automatically excuse the counterparty's own obligations, which is where the transfer-of-risk analysis in the next section becomes decisive. Second, because termination for a permanent impediment operates by law, the parties should still document the event and communicate clearly, since the existence and permanence of the impediment can be contested and will ultimately be judged by a court if the parties disagree.

Force majeure and the transfer of risk in a sale of goods

In a sale, force majeure rarely operates in isolation - it interacts with the rules on who bears the risk of accidental loss. French law follows the principle res perit domino: the risk of loss or deterioration of the goods falls on whoever owns them at the moment the loss occurs. Because ownership of a determined thing usually passes at the moment the parties agree on the goods and the price, the risk generally passes at the same time, unless the parties have agreed otherwise or an Incoterm or reservation-of-ownership clause shifts the timing. See our guide on transfer of ownership and risk for how and when that transfer happens.

This is where the two doctrines meet. Suppose the goods are destroyed by an unforeseeable and unavoidable accident before delivery. If risk has already passed to the buyer, the buyer bears the loss: the buyer must still pay the price even though it will never receive the goods, because it owned the risk when the accident struck. If risk still rests with the seller, the seller bears the loss and cannot claim the price for goods it can no longer deliver. Force majeure explains why neither party is liable in damages; the transfer-of-risk rule decides who absorbs the financial loss.

The events that trigger this analysis are, by definition, fortuitous - accidents attributable to neither party. That overlaps heavily with force majeure: an external, unforeseeable, unavoidable event that destroys the goods is both a force majeure preventing delivery and a risk allocated by the res perit domino rule. The practical consequence is that a seller invoking force majeure to escape a damages claim may still find that the buyer must pay if risk had passed, and a buyer refusing to pay must check where risk sat at the moment of loss.

Timing rules therefore deserve close attention in cross-border sales. Risk may pass at the conclusion of the contract for a sale in bulk, or only once the goods are individualised by counting, weighing or measuring for a sale by weight or measure; and Incoterms fix the moment risk transfers to the buyer independently of ownership. Because these rules determine who carries the loss when force majeure strikes, they should be pinned down in the contract rather than left to default rules that foreign parties may not expect.

What does not qualify as force majeure

The most common and most costly mistake is to treat any serious disruption as force majeure. French courts apply the Article 1218 test strictly, and a great many events fail it. A mere increase in cost is the classic example: if raw materials, energy or transport become far more expensive, performance is harder and less profitable but it remains possible, so it is not force majeure. Difficulty is not impossibility, and the fact that a contract has become a bad bargain does not release the debtor from it.

A foreseeable event also fails, because it breaches the second condition. If, at the date of conclusion, the parties could reasonably have anticipated the event - an already-declared conflict, a known regulatory change, a supplier's known fragility - the party who took on the obligation is treated as having accepted that risk. Contracting during a visible crisis is the surest way to lose a later force majeure argument based on that same crisis.

An avoidable difficulty fails the third condition. If the debtor could have performed by taking appropriate measures - sourcing from an alternative supplier, rerouting a shipment, using a substitute mode of transport - the effects were not unavoidable and there is no force majeure. The same applies where the event affects only the debtor's personal or financial situation: the Cour de cassation has consistently held that a debtor's own financial difficulties do not constitute force majeure, because they are neither external nor, as a rule, unavoidable.

Hardship and imprevision under Article 1195

Where performance is still possible but has become excessively onerous, French law offers a separate remedy: imprevision, or hardship, introduced by Article 1195 of the Civil Code in the 2016 reform. This is the answer to the cost problem that force majeure cannot solve. Article 1195 applies where a change of circumstances that was unforeseeable at the conclusion of the contract renders performance excessively onerous for a party who had not accepted the risk of such a change. The hardship clause France practitioners draft in commercial contracts is a contractual elaboration of this statutory mechanism.

The remedy operates in stages. First, the disadvantaged party may ask the other to renegotiate the contract, and it must continue to perform its obligations while renegotiation is under way - it cannot simply stop delivering or paying. If renegotiation is refused or fails, the parties may agree to terminate the contract on a date and on terms they set, or jointly ask the court to adapt it. Finally, if no agreement is reached within a reasonable time, either party may ask the court, which may revise the contract or terminate it, on the date and conditions the court determines.

Three features deserve emphasis. The change must be genuinely unforeseeable at conclusion, mirroring the second condition of force majeure. The party invoking hardship must not have accepted the risk of that change - a clause allocating market or price risk to that party will block the remedy. And excessively onerous is a high threshold: ordinary commercial swings do not qualify, and the courts have applied Article 1195 with restraint, reserving it for changes that upend the economics of the bargain.

Force majeure vs imprevision: a clear comparison

The two doctrines answer different questions, and choosing the wrong one is a frequent and expensive error. Force majeure asks whether performance has become impossible; imprevision asks whether performance, though still possible, has become excessively onerous. They also lead to different remedies: force majeure suspends or terminates the contract and shields the debtor from damages, whereas imprevision opens a path to renegotiation and, if that fails, judicial adaptation or termination.

A worked example makes the line concrete. If an unforeseeable and unavoidable event destroys the only goods a seller could deliver, that is force majeure: delivery is impossible, and the seller is not liable in damages. If instead the seller can still deliver but only by buying replacement stock at many times the contract price after an unforeseeable market upheaval, that is imprevision: performance is possible but ruinous, and the route is renegotiation under Article 1195, not a force majeure notice.

Drafting force-majeure and hardship clauses

Because the statutory rules are only a default, well-drafted clauses give the parties control over both doctrines. A force-majeure clause can define the trigger events (whether by an illustrative list or a general formula), set out notice requirements and time limits, and spell out the consequences - suspension, an obligation to mitigate, a right to terminate after a defined period of continued impediment. A clause can broaden or narrow the scope compared with Article 1218, but it should be drafted with care: an open-ended list can invite disputes about whether a given event was truly covered.

The hardship position is even more open to contract, because Article 1195 is not mandatory. The parties may exclude it altogether, so that one side bears the risk of a change of circumstances, or reshape it - for example by defining what counts as excessive onerousness, by setting an indexation or price-review mechanism, or by agreeing in advance how the contract adapts if defined thresholds are crossed. A hardship clause France tailored to the deal is usually preferable to relying on the general and cautiously applied statutory remedy.

In cross-border and long-term supply contracts, parties often add a material-adverse-change clause or a price-adjustment mechanism to deal with cost shocks that would otherwise fall between force majeure and imprevision. These clauses can allocate specific risks, trigger renegotiation on defined events, or give a party an exit if agreed conditions are met. The aim is to convert an uncertain judicial outcome into a predictable contractual process the parties designed themselves.

Cross-border sales: force majeure and Article 79 of the CISG

In an international sale of goods, the French domestic concept of force majeure may not be the rule that governs at all. The United Nations Convention on Contracts for the International Sale of Goods (the CISG, or Vienna Convention) applies to sales of goods between parties whose places of business are in different contracting states, unless the parties have excluded it. Whether French domestic law or the CISG governs the transaction is a threshold question - see our guide on which law governs the sale - and it changes which exemption regime applies to a disrupted contract.

The CISG has its own exemption in Article 79. A party is not liable for a failure to perform if it proves that the failure was due to an impediment beyond its control, that it could not reasonably have been expected to take the impediment into account at the conclusion of the contract, and that it could not reasonably have avoided or overcome the impediment or its consequences. The structure resembles Article 1218 - an external, unforeseeable, unavoidable impediment - but the two are not identical, and case law on each has developed separately.

Two differences matter in practice. Article 79 exempts the party only from damages; it expressly preserves the other party's remedies, such as reducing the price or, in a proper case, avoiding the contract, and it deals with impediments caused by a third party engaged to perform. The CISG also contains no direct equivalent of the French imprevision remedy, so a party facing a purely economic hardship under a CISG contract is in a materially different position from one under the Civil Code. These divergences make it essential to know, before a dispute arises, whether your contract is governed by the CISG or by French domestic law.

Invoking force majeure correctly: a practical sequence

Invoking force majeure is not a matter of sending a letter with the right heading. It is a sequence of steps, each of which can be scrutinised later by a court or arbitral tribunal. Getting the sequence wrong - a premature notice, a failure to mitigate, thin evidence - can turn a valid defence into a breach. The following steps set out the disciplined approach we recommend to sellers and buyers alike.

Throughout, keep the two doctrines distinct in your correspondence. If the real problem is cost rather than impossibility, frame the approach as a request to renegotiate under Article 1195, not as a force majeure notice. Sending the wrong notice not only fails on its own terms but can undermine your credibility if the dispute reaches a court.

Frequently asked questions about force majeure and hardship in French sales

What are the three conditions for force majeure france under Article 1218?

The event must be beyond the debtor's control, not reasonably foreseeable when the contract was concluded, and unavoidable in its effects despite appropriate measures. All three must be satisfied at once; if one is missing there is no force majeure. Foreseeability is judged at signing, unavoidability at the time of performance.

Does a sharp rise in prices count as force majeure?

No. A cost increase makes performance harder or unprofitable but not impossible, so it does not qualify as force majeure. The correct doctrine for a ruinous but still-possible contract is imprevision under Article 1195, which opens a route to renegotiation rather than a release from the contract.

What is the difference between force majeure and imprevision?

Force majeure applies where performance has become impossible; imprevision applies where performance remains possible but excessively onerous following an unforeseeable change of circumstances. Force majeure suspends or ends the contract and shields the debtor from damages, while imprevision leads to renegotiation and, failing agreement, judicial revision or termination under Article 1195.

If goods are destroyed before delivery, who bears the loss?

It depends on who held the risk when the loss occurred. Under the res perit domino rule the risk generally follows ownership, which usually passes when the parties agree on the goods and the price, subject to any Incoterm or clause. Force majeure explains why neither party is liable in damages, but the transfer-of-risk rule decides who absorbs the financial loss.

Can we exclude Article 1195 on hardship from our contract?

Yes. Article 1195 is not mandatory, so the parties may exclude it entirely or reshape it - for example by allocating price risk to one party or by inserting a bespoke price-review or hardship mechanism. Deciding this expressly at the drafting stage is preferable to relying on a statutory remedy the courts apply with restraint.

How is force majeure treated in an international sale under the CISG?

If the CISG governs the contract, Article 79 provides the exemption: a party is not liable in damages for a failure due to an impediment beyond its control that it could not have taken into account or overcome. It resembles Article 1218 but is not identical, it excuses only damages, and the CISG has no direct equivalent of imprevision. Always confirm whether the CISG or French domestic law applies first.

What happens if the force majeure event is only temporary?

Performance is suspended while the impediment lasts and revives once it lifts, so the obligation is put on hold rather than extinguished. However, if the resulting delay defeats the purpose of the sale - for example a time-critical or seasonal delivery - the contract may be terminated even though the impediment was only temporary.

Key takeaways on force majeure and hardship in French sales

How our French lawyers help with force majeure and hardship in sales

Petroff Avocats advises sellers and buyers on both sides of these doctrines. For a party facing disruption, we assess whether the situation is force majeure or hardship, verify the Article 1218 conditions or the Article 1195 threshold, prepare correct and timely notices, and manage the choice between suspension, termination and renegotiation - including under Article 79 of the CISG in cross-border deals. For a party on the receiving end of a claimed excuse, we test whether the defence holds, protect the price and delivery remedies, and pursue damages where the conditions are not met. We also draft and review force-majeure, hardship and material-adverse-change clauses so that risk is allocated deliberately rather than left to default rules.

This article is for general information only. It does not constitute legal advice and cannot be relied upon as such. The law and its application to a given sale depend on the exact facts and on the applicable law and forum. Contact our French lawyers for advice on your situation.