Pursuant to Article 1148 of the Civil Code, in case of non-execution

ʺThere is no right to damages and interest when, by a case of force majeur or unforeseeable circumstances, a debtor is prevented from giving or doing that which he/she/it was obligated to do, or did something he/she/it was prohibited from doingʺ.

To qualify as a case of force majeure, an event must be:

  • Unforeseeable (at the time the contract was entered into) – this condition is assessed with respect to a prudent and diligent contracting party, taking into account the circumstances of the place and time;
  • Compelling (at the time of contract execution) – this condition is analysed by verifying whether an average individual, placed in the same circumstances, could have resisted and overcome the obstacle; and
  • External – meaning resulting from an external cause, independent of the will of the person concerned.

Depending on a court’s assessment, the current public health crisis could qualify as a case of force majeure. Moreover, French courts have already moved in that direction because in an order issued on 12 March 2020 (n° 20/01098), the Colmar Court of Appeals recognized that the absence of an asylum seeker at the hearing to which he had been summoned constituted a case of force majeure given the delays and risk of infection (he had been in direct contact with the personnel of an association in confinement following a suspected case of COVID-19).

It should be noted that certain courts have sometimes refused to assimilate into cases of force majeure certain epidemics that were not on the scale of the one we are currently experiencing.

If you think that you could be affected by a case of force majeure related to the current public health crisis, the first thing to verify is the contractual provisions between the parties. It is possible deal with the consequences of a case of force majeure in a contract and even eliminate cases of force majeure as a possible reason for failure to execute a contract.

The circumstances with respect to the criteria described above should be assessed, in particular with respect to the date of entry into the contract.

For the most recent contracts, a determination should be made as to the time from which the consequences of the epidemic could have been anticipated by the parties concerned (When the epidemic began in China? When the WHO qualified the situation as a pandemic? When it developed in Europe? When the first measures were taken in Luxembourg?).

It is essential to document and provide reasons for your request in this context.

By Héloïse CUCHE, Lawyer.