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Introduction of the hardship doctrine (“théorie de l’imprévision”) into

French contract law: A mere revolution on the books?

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German-French Symposium
on Company Law and Capital Markets Law
Max Planch institute – July 7th and 8th, 2016
Introduction of the hardship
doctrine (“théorie de
l’imprévision”) into French
contract law: A mere revolu-
tion on the books?
Alain Pietrancosta
Professeur à l'Université Paris 1 Panthéon-Sorbonne
Talking about hardship – the French approximate transla-
tion for “imprévision” – in the context of the Brexit seemed
like a good idea. More seriously, the introduction of the
hardship concept into French civil law is certainly one of
the main innovations of the Ordinance n° 2016-131 dated
10 February 2016, reforming the Civil Code provisions in
respect to contract law, the general regime and the proof of
obligations (the “Ordinance”), planned to enter into force
on the 1st of October 2016.1
Up until now, in the absence of any specific legal provi-
sions, judicial case-law had rejected the possibility to
terminate or modify an ongoing contract in the event that
an unpredictable change of circumstances dramatically
impedes its fulfilment, or substantially increases one party’s
costs, without making its performance impossible.
Faced with the conflict of principles raised in this scenario
between commutative justice or fairness, condemning such
a severe imbalance between the parties’ performance and
counter-performance during the contract execution, on the
••••••••••••••••••••••••••••••••
1 See Le droit des contrats réformé, sous la direction d’A. Pietrancosta,
Fauves éditions, 2016; G. Chantepie, M. Latina, La réforme du droit des
obligations, Dalloz, 2016 ; B. Mercadal, Réforme du droit des contrats,
éd. F. Lefebvre, 2016 ; P. Chauviré, « Les effets du contrat dans le projet
d’ordonnance portant réforme du droit des obligations. Réponse à la
consultation »: Gaz. Pal. 30 avr. 2015, p. 29, n° 72 ; R. Cabrillac,
« L’article 1196 : la porte entrouverte à l’admission de l’imprévision » :
RDC 2015, n° 3, p. 771 ; S. Pimont, Le traitement juridique de
l’imprévision dans le projet d’ordonnance portant réforme du droit des
contrats, du régime général et de la preuve des obligations. Deux exer-
cices d’interprétation, in Les perspectives de modernisation du droit des
obligations, Association Henri Capitant, Dalloz. 2015, p. 67 ; P. Stoffel-
Munck, « La réforme en pratique, la résiliation pour imprévision », AJ
Contrats d’affaires-concurrence-distribution, 2015, p. 262 ; Y. Picod,
L’imprévision contractuelle, in La réforme du droit des contrats, 1re
Journée Cambacérès : Faculté de droit et de science politique de Mont-
pellier, 2015, p. 165, spéc. p. 177 ; Ph. Dupichot, « La nouvelle résiliation
judiciaire pour imprévision : Réforme du droit des contrats et pratique
des affaires », Dalloz Thèmes et commentaires 2015 p. 73 ; C. Champa-
laune, « Pour une consécration raisonnée de l’imprévision dans le code
civil », Bull. jur. des contrats publics, n° 102 ; N. Molfessis, « Le rôle du
juge en cas d’imprévision dans la réforme du droit des contrats », La
Semaine Juridique Édition Générale n° 52, 21 déc. 2015, 1415 ; « Ré-
flexions sur l’imprévision dans le projet de réforme du droit des
contrats », Petites affiches, 16 nov. 2015, n° 228 ; J. Moury, « La déter-
mination du prix dans le « nouveau » droit commun des contrats »,
Dalloz 2016 p. 1013 ; J.-S. Borghetti, « La force obligatoire des con-
trats », Droit & Patrimoine, mai 2016, n° 258, p. 67 ; T. Revet, « Le juge
et la révision du contrat », Revue des contrats, juin 2016 n° 2, p. 373.
RTDF N° 3 - 2016  COLLOQUE / Alain Pietrancosta
COLLOQUE
one side, and the pacta sunt servanda principle (Art. 1134
Civil Code, now in Art. 1103), serving a more general
objective of legal certainty, on the other side, French law
traditionally chose the latter. It even showed on the subject
great rigidity and resistance to criticism and to international
legal developments.
This remarkable resistance is based on reasons that are
both positive and negative. These reasons first lie upon the
inherent merits of the rejection of hardship in terms of
security, stability and predictability of transactions, but also
of accountability of contracting parties, highly incentivised
to anticipate the occurrence of an adverse change of cir-
cumstances, in the absence of a protective legal remedy.
The parties lacking of foresight could only blame them-
selves. Jura vigilantibus!
The rejection of hardship can also be explained by the risks
of its admission, especially its possible exploitation by
dishonest contracting parties, attempting evasion from
unfavourable contracts, the subsequent contamination
effect of the termination or revision of contracts, and the
destabilisation of contracting parties’ anticipations. In
addition, the difficulty and uncertainty regarding the im-
plementation of this new judicial power is often underlined,
which would take the courts out of their traditional role of
“saying the law” into “saying the contract”, by directly
striking the balance of contractual relations and setting
their substance. A task French judges are generally not
trained nor equipped to perform. Historically, it is precisely
the application of hardship by the infamous Parliaments of
the Ancien Régime that had convinced French jurists to
return to the Roman prohibition of hardship.
As a matter of principle, following the natural law school
emphasis on the importance of the contracting parties’ will,
the Civil Code rejected the concept of hardship. This rejec-
tion was later upheld by the French Supreme Court,
especially in the famous “Canal de Craponne” case, dated
March 6, 18762, which vigorously proclaimed the sanctity of
contracts. The contracts in question, dating from 1560 and
1567, referred to the water supply for an irrigation canal in
the plains of Arles at a fixed price. Much later, in the nine-
teenth century, confronted with inflation and an increase in
labour costs, those in charge of canal maintenance request-
ed that the price be increased. The Court of Appeal of Aix
confirmed the tribunal’s judgment in which the price had
been increased. However, this decision was overruled by
the French Supreme Court arguing that time and equity
could not allow a court to modify the agreement between
the contracting parties, according to Art. 1134 C. civ.: « the
courts shall not, under any circumstances and even if the
decision might seem equitable, take into account the time and
the circumstances to modify the contracts entered into by the
••••••••••••••••••••••••••••••••
2 Civ., 6 March 1876, DP 76.1.195, note Giboulot, S. 76.1.161, Grands
arrêts, t. 2, n° 165.
1
 COLLOQUE
parties and substitute new clauses for the ones freely accepted
by the contracting parties ».3
This general protection of the contract from judicial inter-
ference survived two world wars, despite the upheavals
caused, and all subsequent crises. It managed to resist
growing criticism for 140 years! Indeed, this longstanding
and fundamental principle became one of the most disput-
ed pieces of French contract law. The development of civil
jurisprudence showed an increasing inclination towards
some forms of hardship recognition. This recognition was
unsurprisingly defended on the grounds of justice and
morality. It was said that a party claiming the execution of a
severely imbalanced contract acts in bad faith, abuses of its
right and grows unjustly rich.
More interestingly, such recognition has also been support-
ed on the grounds of its opponents, namely the respect for
the will of contracting parties and the utility of contracts.
Attempts were made to demonstrate that the admission of
hardship would not constitute a breach of binding con-
tracts.4 On the contrary! The contracting parties’
anticipations cannot be disregarded for the reason that, by
definition, the adverse change in circumstances had not
initially been included in the contract. The admission of
hardship negatively affects the binding force of the contract
but only to restore the desired agreement between the
parties. Thus, in certain exceptional cases, the correction of
excessive imbalances of contractual benefits and losses is
precisely mandated by the social and economic utility of
contracts.
French law has gradually shown more openness to hard-
ship. In administrative law, the imprévision doctrine has
been generally recognised following the famous decision in
Gaz de Bordeaux (1916) where the Conseil d’État, allowed
a contract to be renegotiated in the case of hardship. In the
absence of an agreement, administrative law grants indem-
nity to a contracting party based on the continuity of public
services’ principle.
In civil law, inflections to the inviolability of contracts’
principle have mostly taken the form of statutory excep-
tions. The legal cases of hardship, rare in the original Civil
Code, have increased over time, in such fields as insurance,
donations with charges, bankruptcy proceedings, intellectu-
al property, divorce...
Case law has also shown some signs of change, indicating
the desire to make some room for hardship. For example,
by characterising the increased expenditures necessary for
the execution of a lease as a loss, due to a fortuitous event;
by deciding that for unilateral promises of sale, the lesion is
assessed on the day the promise is executed and not the day
the promise was given; or by admitting the revision of the
contract when an obligation is partially devoid of cause and
purpose due to an “act of the Prince”.
In 1992, the French Supreme Court invoked the require-
ment of good faith in order to impose, in highly
personalized professional contracts, an obligation to rene-
gotiate their terms in certain critical circumstances.5 This
••••••••••••••••••••••••••••••••
3 « Dans aucun cas, il n’appartient aux tribunaux, quelque équitable que
puisse leur paraître leur décision, de prendre en considération le temps et
les circonstances pour modifier la convention des parties et substituer des
clauses nouvelles à celles qui ont été librement acceptées par les contrac-
tants ».
4 See L. Thibierge : Le contrat face à l’imprévu, Economica 2011.
5 Com. 3 Nov. 1992, JCP 1993.II.22614, obs. Virassamy, RTD civ.
1993.124, obs. J. Mestre : « en privant, en l’absence de tout cas de force
majeure, un distributeur agréé des moyens de pratiquer des prix concur-
2 RTDF N° 3 - 2016  COLLOQUE / Alain Pietrancosta
opening proved limited since later case law restated firmly
the absence of a general obligation to renegotiate a con-
tract.6
In a case of 2010, the Supreme Court seemed to admit that
hardship results in the termination of a contract by way of
extinction of its “cause”.7 The decision was however ambig-
uous and this door was then closed by the Supreme Court.8
For the most part, it remained the sole responsibility of the
parties to neutralize the disadvantages of the rejection of
hardship, through the insertion in contracts subject to an
incompleteness risk9 of renegotiation clauses (hardship
clauses), revision or termination clauses (MAC clauses, jus
variandi). The validity of these clauses, which are often
included in securities purchase contracts, mergers or financ-
ing agreements, has been recognized in case law.
Despite these openings, and in the context of an increasing-
ly favourable international legal trend with regard to
hardship, the position of French law appeared increasingly
rigid. Comparatively, many countries had abandoned their
general hostility towards hardship and introduced it up to
varying degrees, following either case law developments (as
in Germany, Spain, Switzerland), or legislative interven-
tions (as in Italy, Greece, Netherlands, Portugal, Chile,
Algeria, Jordan, Iraq, etc.).10 This evolution seemed to
correspond with the changing practical needs, especially
considering the growing number of long-term contracts
concluded within an increasingly uncertain environment.
Studies have retrospectively demonstrated no worsening of
these countries’ legal uncertainty.11
Furthermore, when the harmonization projects of Europe-
an contract law all concurred to make room for hardship (v.
Principles of European Contract Law (art. 6-111) and
Unidroit Principles of International Commercial Contracts
••••••••••••••••••••••••••••••••
rentiels, une société pétrolière n’a pas exécuté le contrat de bonne foi et
doit dédommager le contractant du préjudice subi ». Rappr. Com.
24 Nov. 1998, Defrénois 1999.371 obs. D. Mazeaud, RTD civ. 1999.
98 obs. Mestre. For a false announcement of the introduction of a duty
to renegotiate in case of an unforeseeable change of economic circum-
stances, see Civ. 1re, 16 March 2004, D. 2004. 1754, note D. Mazeaud,
RDC 2004. 642, obs. D. Mazeaud, et l’échange entre J. Ghestin,
« L’interprétation d’un arrêt de la Cour de cassation », D. 2004. 2239 et
A. Bénabent, Dalloz ou Dallas ?, D. 2005. 852.
6 See: Rapport annuel pour 2003 : « à défaut d’agissements blâmables de la
partie forte, il n’y a pas d’obligation de renégocier le contrat devenu désé-
quilibré ». Adde, CA Paris (14e ch., sect. A), 28 Jan. 2009, pourvoi no.
08-17.748, stating that a party « n’est pas fondée à solliciter la renégocia-
tion du contrat convenu entre les parties (...), au motif d’un
bouleversement de l’économie du contrat, dès lors que la convention des
parties a force de loi et qu’il lui incombe de supporter les conséquences de
son imprévision, serait-elle le fruit d’un usage dans le secteur considéré –
dans le choix, ou en l’occurrence l’absence, de modalités de révision du
prix ».
7 Com. 29 June 2010, D. 2010. 2481, note D. Mazeaud, et 2485, note
T. Genicon, RDC 2011. 34, obs. E. Savaux, RTD civ. 2010. 782, obs.
B. Fages.
8 See Cass. com., 7 Jan. 2014, n° 12-17154 ; Cass., 18 March 2014, n° 12-
29453, inédit, CCC 2014, com. 123, obs. Leveneur ; RDC 2014, obs. Lai-
thier. Adde, CA Bordeaux, 28 Oct. 2015, no 14/00668, Serge X c/ SAS
Clinique Sainte Anne, Mme Roussel, prés., M. Franco et Mme Sallaber-
ry, cons. ; Mes Gravellier, Herri et Dayau, av.
9 V. R. Tafotie, L’incomplétude contractuelle comme imprévision endo-
gène ou structurelle du contrat, Université de Montréal, Avril 2015.
10 B. Cavalié, « Le projet de réforme du droit des contrats face à la crise :
quel avenir pour la théorie de l’imprévision ? », Revue Lamy Droit civil,
juillet-août 2009, p. 70.
11 R. David, « L’imprévision dans les droits européens », in Études offertes
à Alfred Jauffret, LGDJ, 1974, p. 211 et s.; D. Tallon, « La révision du
contrat pour imprévision au regard des enseignements récents du droit
comparé », in Mélanges Sayag, Litec, 1997, p. 403 et s.

(art. 6 -2-1 2-3)), the French traditional approach appeared
isolated and difficult to sustain.
The reversal of the general principle
Thus, 140 years after Canal de Craponne and 100 years
after Gaz de Bordeaux, the French legislature decided to
take the plunge and introduce hardship through a general
rule.
The revision of a contract due to hardship had hitherto only
two bases: the law and the contract. The 10th of February,
2016 Ordinance added a third possibility: the judicial revi-
sion prompted by an unpredictable change of circums-
tances.
The entire reform is encapsulated in Article 1195 of the
French Civil Code, providing as follows:
“If a change of circumstances occurs, which was unforeseea-
ble at the time when a contract was entered into, and as a
result the performance by one party becomes excessively
onerous, and the party had not agreed bearing such risk,
such party may request from the other contracting party a
renegotiation of the contract. Such party continues to per-
form his obligations during the renegotiation.
If the renegotiation is rejected or fails, the parties may agree
to terminate the contract, as of the date and according to the
terms which they may determine, or jointly agree to ask the
court to adapt the contract. In the absence of an agreement
within a reasonable timeframe, the court may, at the request
of one party, revise the contract or terminate it, as of the date
and according to the terms specified by the court.”
I. Scope of application
Article 1195 does not expressly distinguish amongst the
legal natures of the contracts. Logically, however, it can
only apply to contracts involving continuous, sequential or
deferred performance. If hardship will mainly apply practi-
cally in the case of contracts involving monetary
obligations, the legal provision does not exclude its applica-
tion to any other contract types. Additionally, we find no
legal ground for restricting the application of Article 1195
to bilateral contracts or for value contracts, since unilateral
contracts or gratuitous contracts with charges may be af-
fected by hardship. Similarly, if hardship is destined to
apply most frequently in the case of “commutative con-
tracts”,12 its application to “aleatory contracts”13 is not
totally excluded, in the event that a change in circumstances
dramatically transfigures the risks anticipated by the par-
ties. However, it is only logical to consider that purely
speculative contracts fall naturally out of the field of hard-
ship. This may be the case of financial or securities
agreements.
Thus, with regard to transactions concerning risky securi-
ties,14 notably equity securities, some of which can take
place over several months or years, especially when they
••••••••••••••••••••••••••••••••
12 “A contract is commutative when each party undertakes to procure to the
other a benefit deemed to be equivalent to the one it receives” (new art.
1108 of the Civil Code).
13 “A contract is aleatory when the parties agree that the effects of the
contract, as regards the benefits and the losses resulting therefrom, shall
depend on an uncertain event” (new art. 1108 of the Civil Code).
14 See H. Le Nabasque, « L’imprévision et la cession de droits sociaux »,
Bull. Joly, sept. 2016, p. 538.
RTDF N° 3 - 2016  COLLOQUE / Alain Pietrancosta
COLLOQUE
involve a change in control of a company, one may then
have to distinguish between accepted risks and unaccepted
risks; normal intrinsic shareholder risks and others; which
could result in the application of hardship: e.g. unforeseea-
ble changes of circumstances between signing and closing.
The question may also arise in the event of unilateral prom-
ises to purchase shares at a predetermined price, shares
which subsequently lose all or much of their value; or in
commitments to buy stock at a future price when this price
becomes uncorrelated of the issuer’s value; or payment
obligations of an earn out that becomes excessively expen-
sive.15 Apart from technical arguments that could neutralise
such claims, the contracting parties’ intentions, as well as
the speculative or risky nature of their operations, will also
play a decisive role.
As for loans or debt securities, the application of hardship
in case of currency appreciation or depreciation would
contradict the general principle of monetary nominalism,
now enshrined in the Civil Code,16 whereby a debtor must
pay the nominal amount of the sum of money that he owes,
without taking into account any potential monetary varia-
tions. In case of loans or debt securities with variable
principal/rates, the soaring of the used index or, contrarily,
the occurrence of a market event giving rise to negative
rates17 will certainly raise some questions as to the possible
application of hardship.
For some types of contracts, the application of Article 1195
may conflict with other protective legal provisions. This is
the case in framework contracts (“contrats-cadre”) or
contracts for the supply of services (“contrats de prestation
de service”) wherein the price is unilaterally determined by
one of the parties, since Articles 1164 and 1165 already give
the debtor the right to seek damages in the event of an
abuse from the other party. As for contracts of indefinite
duration, Article 1195 would be of secondary importance as
they may be terminated by one or the other contracting
party at any time in accordance with the provisions relating
to such contracts. A similar statement could be made re-
garding contracts providing alternative obligations for the
debtor.
II. Conditions for application
As provided for in Article 1195, the application of hardship
is strictly framed. It involves the presence of four condi-
tions:
(1) a “change of circumstances”;
(2) “unforeseeable at the time when a contract was entered
into”;
(3) which results in the performance of the contract by one
party being “excessively onerous”;
(4) when such party “had not agreed to bearing such risk”.
••••••••••••••••••••••••••••••••
15 V. F. Giancarli, « L’affaiblissement de la force obligatoire du contrat
dans le projet de réforme », BRDA, 1/16, p. 28.
16 Art. 1343.
17 V. TGI Strasbourg, ord. réf., 5 janv. 2016, n° 15/00764 : LEDB mars
2016, n° 048, p. 6, obs. Lasserre Capdeville J. ; Gaz. Pal. 7 juin 2016,
n° 267b3, p. 64, obs. Roussille M. ; RD bancaire et fin. 2016, comm. 54,
obs. Crédot F.-J. ; TGI Montpellier, 9 juin 2016, n° 11-16-000424, M. X
c/ Société coopérative CRCAM du Languedoc, M. Perez, prés. ; SCP
Grappin Adde-Soubra, av., Gazette du Palais, 5 juillet 2016 n° 25, p. 19,
note Jérôme Lasserre Capdeville.
3
 COLLOQUE
1. « A change of circumstances »
The change in circumstances must occur after the conclu-
sion of the contract. This chronological element is critical in
the differentiation of hardship from lesion. It can cause
some difficulties when trying implement this chronological
criterion in situations where the contract has been extended
or renewed.18
The word “change” is general and neutral.19 It does not
imply a condition of magnitude or suddenness, contrary to
the criterion of “upheaval” used in public law.
Regarding the types of circumstances, Article 1195 is not
particularly restrictive. All types of circumstances can
therefore be considered: wars, terrorist attacks, climate
changes, health problems, famines, political, technological
disruptions, supply or sales crises, currency crises, financial
crises... and potentially, changes in the legal environment
(bans, embargos, taxes, environmental regulation, reversal
of case law, change in a country’s legal status...).20
The question then becomes whether or not the event can be
internal to the contracting parties. For some, the term
“circumstances” implies exteriority.21 It seems, however,
that a more relevant criterion pertaining to the term “cir-
cumstances” would be their non-imputability to the debtor,
therefore limiting the application of Article 1195 to events
that do not fall under its sphere of influence.22
Contrary to Article 313 of the BGB, Article 1195 of the
French Civil Code does not expressly require that these
circumstances be the basis of the contract.
2. A change of circumstances “unforeseea-
ble at the time when a contract was entered
into”
The criterion appears rigorous: it is not sufficient that the
change was unforeseen; it must also have been unforeseea-
ble.23 One recognizes in this requisite the moral aspect of
French law in this regard: if the circumstances were fore-
seeable, the parties could have contractually arranged the
consequences; if they had not done so, it is either because
they were negligent or because they tacitly accepted the
risk.
The application of the unforeseeability criterion obviously
raises many difficulties. It is useful in this instance to refer
••••••••••••••••••••••••••••••••
18 V. M. Mekki, « De l’imprévisible changement de circonstances à
l’imprévisible immixtion du juge ? Analyse du nouvel article 1195 du
Code civil », BRDA, 10/16 ; B. Mercadal, Réforme du droit des contrats,
éd. F. Lefebvre, 2016, n° 611.
19 See P. Stoffel-Munck, « L’imprévision et la réforme des effets du
contrat », Revue des contrats, avril 2016 n° Hors-série, p. 30.
20 « Réflexions sur l’imprévision dans le projet de réforme du droit des
contrats », Petites affiches, 16 nov. 2015, n° 228 ; P. Stoffel-Munck,
« L’imprévision et la réforme des effets du contrat », Revue des con-
trats, avril 2016 n° Hors-série, p. 30 ; M. Mekki, « De l’imprévisible
changement de circonstances à l’imprévisible immixtion du juge ? Ana-
lyse du nouvel article 1195 du Code civil », BRDA, 10/16.
21 « Réflexions sur l’imprévision dans le projet de réforme du droit des
contrats », Petites affiches, 16 nov. 2015, n° 228 ; P. Stoffel-Munck,
« L’imprévision et la réforme des effets du contrat », Revue des con-
trats, avril 2016 n° Hors-série, p. 30.
22 V. B. Deffains, S. Ferey, « Pour une théorie économique de
l’imprévision en droit des contrats, » RTD civ. 2010. 719.
23 See on this distinction, L. Thibierge, Le contrat face à l’imprévu, préf. L.
Aynès, Économica, 2071, spéc. n° 2, p. 2.
4 RTDF N° 3 - 2016  COLLOQUE / Alain Pietrancosta
to the case-law on “force majeure”, unforeseeability being
one of its distinctive components. True, the new definition
of “force majeure” does refer to an event that could not be
“reasonably foreseen”,24 a restriction absent in Article 1195.
However, this difference should probably not be exaggerat-
ed, which could prevent an interpretation of the
unforeseeability in abstracto.25
We may also not want to hold an absolutist vision of un-
foreseeability, which would deprive Article 1195 of all
useful effect. Indeed, everything is conceptually predicta-
ble, and increasingly so, in the context of a globalized world
shaken by crises. The focus should be not only on the un-
foreseeability of the event itself, but also on the singularity
of its occurrence and the magnitude of its impact on the
relevant contract.26
It therefore seems appropriate to establish the magnitude
of the event as a relevant criterion: as the event in itself
may have been predictable, its unpredictable consequences
prevent their integration in the initial contract, be it only to
stipulate their acceptance by one or both parties.27
3. An unforeseeable change of circumstanc-
es which results in the performance of the
contract by one party being “excessively
onerous”
On the scale of performance difficulties that a contracting
party may encounter, hardship occupies an intermediate
position between a mere cost increase and a radical impos-
sibility.
An excessively onerous performance
Inspired by the Principles of European Contract Law, this
condition signifies that not only should the onerosity be
posterior to the conclusion of the contract, it must also be
the result of a change in circumstances.28
As for the interpretation of the legal expression “excessive-
ly onerous”, which may appear as an oxymoron, number of
commentators seem to adopt a narrow vision.29 Article 1195
would only apply in the case of a contractual imbalance
resulting from the difficulty for a party to perform its obli-
gation in and of itself, excluding the difficulty originating
from the loss of value or the loss of interest of the expected
consideration.
This interpretation seems questionable in the absence of
legal distinction. Firstly, even if the wording of Article 1195
uses the singular when referring the victim of hardship, one
can imagine a situation where each party may suffer a
change of circumstances making the execution of its obliga-
••••••••••••••••••••••••••••••••
24 Art. 1218.
25 See M. Mekki, « De l’imprévisible changement de circonstances à
l’imprévisible immixtion du juge ? Analyse du nouvel article 1195 du
Code civil », BRDA, 10/16 ; T. Revet, « Le juge et la révision du con-
trat », Revue des contrats, juin 2016 n° 2, p. 373.
26 G. Ripert, La règle morale dans les obligations civiles, LGDJ, Paris,
1949, nº 87.
27 V. B. Deffains, S. Ferey, « Pour une théorie économique de
l’imprévision en droit des contrats », RTD civ. 2010.719.
28 See B. Mercadal, Réforme du droit des contrats, éd. F. Lefebvre, 2016, n°
613.
29 See P. Stoffel-Munck, « L’imprévision et la réforme des effets du
contrat », Revue des contrats, avril 2016 n° Hors-série, p. 30.

tions excessively onerous. The imbalance would therefore
not itself constitute a necessary condition. More important-
ly, not taking into account the loss of value or interest of
the expected consideration relates a unilateral approach of
contracts, which is inherently questionable and moreover
unfaithful to the text, which does not speak of the perfor-
mance of one party’s obligation, but of the contract, which
should allow acknowledgment of the overall relationship
and the relative cost of the contractual obligations.
The onerosity should be assessed objectively, according to
the economics of the contract, and not subjectively, accord-
ing to the general financial capacities of the debtor.
For the remainder, void of any legal restrictions, all sources
of excessive onerosity should be covered, whether they
constitute personal difficulties (e.g. risk of injury) or mate-
rial difficulties (economic), encountered by the debtor.
One practical difficulty will be the measurement of the cost
excess.30 The parties could try to reduce it by agreeing to a
numerical threshold of impact, based for example on the
turnover of a company.31
But a performance which remains possible
Hardship implies that performance of the contractual
obligations remains possible. If such performance became
objectively impossible, we would be in the presence of a
“force majeure”, resulting in: the suspension of the contract,
if the impossibility were temporary; in the termination of
the contract, if the impossibility were final;32 unless the
contract provides for alternative obligations.
4. Absence of risk acceptance
A priori, this condition seems rather obvious: if the parties
accepted a risk, it would be difficult for them to protest its
occurrence. The acceptance of risks results precisely in the
obligation to suffer the consequences should they material-
ise.
However, this condition raises a logical problem: how could
a risk resulting from an unforeseeable change of circum-
stances be accepted by parties ex ante? To this question,
several answers are possible. Firstly, if the risk was contrac-
tually identified, it necessarily implies that, as shown, what
appears to be significant is not the event itself but the
magnitude of its consequences on the contract. Secondly,
the parties may have decided to accept the general risk of
hardship.33 Since contracting parties may even accept in
advance the adverse consequences of an event character-
ised as “force majeure”, an a fortiori argument should
sustain the possibility of taking hardship’s inferior risk.
Practically, there will be situations where one could ques-
tion whether a risk was genuinely or properly accepted by
the parties. In the absence of any dedicated clause, it re-
mains to be seen to what extent case-law will resort to the
notion of tacit acceptance of risk. A dedicated clause would
••••••••••••••••••••••••••••••••
30 See D. Girsberger, P. Zapolskis, “Fundamental alteration of the
contractual equilibrium under hardship exemption”, Jurisprudencija,
2012, Vol. 19 Issue 1, p. 121.
31 B. Mercadal, Réforme du droit des contrats, éd. F. Lefebvre, 2016, n°
612.
32 New Art. 1218.
33 « Réflexions sur l’imprévision dans le projet de réforme du droit des
contrats », Petites affiches, 16 nov. 2015, n° 228 ; Dossier Revue Droit
des contrats, sept. 2015.
RTDF N° 3 - 2016  COLLOQUE / Alain Pietrancosta
COLLOQUE
certainly help in this regard, without, however, completely
eliminating disputes on its scope or its genuine acceptance,
arguing over it being insufficiently underlined in the con-
tract.34 Indeed, we may bear witness to large standard risk
acceptance clauses permeating many contracts.35
In the case of an asymmetric clause, creating a significant
imbalance regarding the exposure of the parties to hard-
ship, the new legal prohibition of unfair terms (C. civ. Art.
1171) could be invoked.36 However, its effectiveness faces
serious legal constrains since it only applies to standard
form contracts and excludes the main object of the contract
or the suitability of the price paid for the act of perfor-
mance in determining whether there is a significant imbal-
imbalance. Other protective legal provisions, either in the
Consumer Code,37 or in the Commercial Code,38 may also
be invoked against imbalanced clauses.
III. Consequences of hardship: modi-
fication or extinction of the contract
When the conditions are met, Article 1195 provides a
number of options ranging from the renegotiation of the
contract, to its judicial revision or liquidation. This result is
the product of a two-phase process: in all cases, a negotia-
tion, at least an attempt; possibly, if the renegotiation fails,
a judicial phase. Out of respect for the freedom and sanctity
of contracts, the first phase – consensual – is made primary;
the second – “dissensual” –, only subsidiary.
1. The consensual phase
This phase knows several stages, over which the consensus
fades but does not completely disappear.
Attempt to renegotiate
The party which invokes hardship may ask the other one(s)
for the renegotiation of the contract, in order to adapt the
contract to the change of circumstances. This faculty is not
particularly new, nor is it constructive since a contractual
party can always ask the other one(s) to renegotiate. As an
option, the interested party may or may not use it. Its
exercise in Article 1195 is however conceived as a pre-
requisite for a judicial request to modify or terminate the
contract.
The second sentence of Article 1195 stating that the rene-
gotiation does not by itself relieve the party invoking
hardship from performing its obligations, is a reminder of
the binding force of contracts in the absence of “force
majeure”. This reminder is essentially aimed at preventing
delaying tactics. The efficacy of this requirement is however
only relative. The difficulties encountered by the debtor
••••••••••••••••••••••••••••••••
34 Dossier Revue Droit des contrats, sept. 2015.
35 See H. Périnet-Marquet, « Droit des contrats le changement c’est
demain » : Constr. -urb. avr. 2075, repère 4.
36 See M. Mekki, « De l’imprévisible changement de circonstances à
l’imprévisible immixtion du juge ? Analyse du nouvel article 1195 du
Code civil », BRDA, 10/16.
37 Art. L. 212-1 C. cons. on “abusive clauses”.
38 Art. L. 442-6, I, 2° C. com. : “Any producer, trader, manufacturer or
person recorded in the trade register who commits the following offences
shall be held liable and obliged to make good the damage caused: […]
Subjecting or seeking to subject a trading partner to obligations that cre-
ate a significant imbalance in the rights and obligations of the parties”.
5
 COLLOQUE
may allow him to be granted in court delays for payment of
his monetary obligations, pursuant to ordinary French law
provisions, or to block the creditor’s attempt to obtain
specific performance, which is excluded when there exists
“a manifest disproportion between the cost of performance
for the debtor and the interest for the non-defaulting party”.39
Moreover, as this obligation for the debtor to perform his
obligations is set to continue during the renegotiation, some
may interpret Article 1195 a contrario as relieving the
debtor in case of failure or refusal to renegotiate. Although
this interpretation is doubtful, we understand how it may
appear unrealistic to expect a debtor of an excessively
onerous obligation to perform it fully given the time neces-
sary to obtain a court order.
Possible outcomes of the renegotiation attempt
The party(ies) facing a claim of hardship may agree to the
proposal of renegotiating the contract and the negotiations
may be successful. But he(they) may also refuse to renego-
tiate, since Article 1195 does not create any legal
requirement to renegotiate. We can anticipate the credi-
tors’ main reasons for refusal to renegotiate either being
their belief/conviction that the prerequisites of Article 1195
are not met; or the fear that their acceptance to enter into
renegotiations could be interpreted as a recognition of
hardship regarding their debtors, preventing them from
challenging it before a court. However, the adverse conse-
quences of a refusal to renegotiate may incentivise
the(these) party(ies) to respond favourably.
If the renegotiation is rejected or fails, both parties may
agree on one of two options: either terminating the con-
tract, or requesting the courts to adapt the contract.
The procedural role of the court in such circumstances
remains unclear, since a doubt may arise as to whether the
matter is categorized as contentious. This distinction pro-
duces important repercussions in terms of the court’s
powers, as well as the rights and procedural guarantees
offered to the parties or the legal authority attached to the
court’s decision. Even if for most of the commentators the
matter should be characterised as not contentious40, we
should remain cautious, as the agreement of the parties to
apply to the court does not amount to an absence of a
dispute between them, a condition required by Article 25 of
the French Civil Code of Procedure to submit a case to a
court in non-contentious matters. Moreover, the same
provision requires that a court may only decide in a non-
contentious way when “an action is referred to him that the
law requires, due to the nature of the matter or the capacity
of the petitioner, that he must examine it”. The fact that
Article 1195 simply provides a possibility for contracting
parties to refer to a court, as well as the existence of some
disagreement between them regarding the principle or
terms of the pursuance of their contractual relationship,
may convince our courts to characterise such judicial action
as a contentious one. Consequently, the statement often
made by commentators that the court may not in such
instance verify that the particular situation falls within the
scope of Article 1195 and meets its conditions for applica-
tion may also be challenged.41 The absence of this
••••••••••••••••••••••••••••••••
39 Art. 1221.
40 See N. Molfessis, « Le rôle du juge en cas d’imprévision dans la réforme
du droit des contrats », La Semaine Juridique Édition Générale n° 52,
21 déc. 2015, 1415 ; J. Moury, « La détermination du prix dans le « nou-
veau » droit commun des contrats », Dalloz 2016 p. 1013.
41 See Art. 16 of the Civil Code of Procedure.
6 RTDF N° 3 - 2016  COLLOQUE / Alain Pietrancosta
guarantee would certainly refrain creditors from accepting
to participate in such a call for judicial intervention.
The substantial role of the court is not much clearer: what
does “adapting” the contract mean exactly? How different
is it from “revising” the contract?42 May the parties, and if
so to what extent, restrict the court’s adaptation powers? In
such conditions, and considering the judges’ lack of exper-
tise, one may wonder why the parties would choose to ask a
court rather than an independent expert.
2. The dissensual phase
“In the absence of an agreement within a reasonable
timeframe, the court may, at the request of one party, revise
the contract or terminate it”. This possibility for the court to
terminate or revise the contract at the request of only one
party is the latest, most unexpected and controversial
aspect of Article 1195. Its legality has even been questioned
since such a possibility was not initially included in the
legislative provision which, through an Ordinance, delegat-
ed power to the Government to reform French contract
law.
Its implementation also raises major issues. Article 1195
first provides that the initiative to refer to the court comes
from “one party”. But which one? Probably the victim of
hardship, but not necessarily. Could this condition prevent
both parties from applying to the court unilaterally? Proba-
bly not. This may even be very common, as the parties’
personal interests may lead them to ask the court for differ-
ent and even opposite things: a party may request the judge
to terminate the contract (e.g. the debtor, seeking to regain
his freedom and therefore current market conditions); the
other one may consequently bring a counterclaim (e.g. the
creditor requesting a revision of the contract in the hope of
keeping part of the windfall caused by hardship).
Another issue relates to the legal prerequisite lying in the
“absence of an agreement within a reasonable timeframe”.
Apart from the uncertainty attached to the time-limit that
one might consider reasonable, ambiguity arises from the
word “agreement”, which could either refer to the renegoti-
ation attempt or to the consensual action to refer to the
court.
The main issue certainly relates to the extent of the court’s
powers, assuming it is confirmed that the particular situa-
tion falls within the scope and meets conditions for
application of Article 1195.43 Unquestionably, the court’s
powers are extremely broad.
Interestingly, Article 1195 does not establish any sort of
priority between contract termination or revision, allowing
for freedom of the court to enforce either solution. Howev-
er, according to some commentators, the unilateral request
to the court may be restricted to only one option, for exam-
ple the termination of the contract. For instance, the victim
of hardship may want to the renegotiation to fail in order to
obtain termination of the contractual relationship. This
strategy would in effect be inhibited, should the other
party(ies) request the court for the revision of the contract.
••••••••••••••••••••••••••••••••
42 B. Mercadal, Réforme du droit des contrats, éd. F. Lefebvre, 2016, n°
621.
43 N. Molfessis, « Le rôle du juge en cas d’imprévision dans la réforme du
droit des contrats », La Semaine Juridique Edition Générale n° 52, 21
déc. 2015, 1415 ; « Réflexions sur l’imprévision dans le projet de réforme
du droit des contrats », Petites affiches, 16 nov. 2015, n° 228.

The uncertainty regarding the court’s favoured opinion will
undoubtedly have the ex ante effect of encouraging parties
to enter into negotiation. There will certainly be some game
theory involved.
For some commentators, the presence of the conjunction
“or” should simply prohibit the judge to combine his pow-
ers to “review” and “terminate” the contract, for example in
ordering the contract’s termination at the end of a notice
during which the parties would be required to perform
revised obligations.44 But even the existence of such a
prohibition is debatable.
If the court decides to terminate the contract, it will do so
“as of the date and according to the terms” which it specifies.
It may therefore retrospectively establish the date of the
change of circumstances. One can also wonder whether the
court has the power to award compensation to the party
suffering the termination of the contract or on the contrary
to the party that had previously suffered the consequences
of the change of circumstances.45
If the court decides to revise the contract, it then enters into
a realm of seemingly limitless faculty. There is indeed no
preciseness regarding the objective assigned to the court
and the means at its disposal. What will the courts’ attitude
be? Will they attempt to balance the contract according to
the new market conditions and equally distribute the risks
between the parties; or attempt to restore its initial explicit
or implicit balance?46 Will they take into consideration the
required performance of the victim’s contractual obliga-
tions until the judicial decision?47 Will they systematically
resort to experts or try to convince the parties to resume
their negotiations?
As a guiding principle, one may consider that instead of
allowing the court to decide objectively on what it considers
to be the proper sharing of the risks amongst the parties,
trying to interpret the will of the parties in this regard,
determine their level of risk aversion and thwart opportun-
istic strategies such as rent extractions would better
correspond to its mission and capacities.
This option casts serious doubts. Some even challenge the
compatibility of these judicial discretionary powers, should
they be recognised, with fundamental rights and liberties.48
On a practical level, one may be dubious about the possibil-
ity for the courts to succeed where contractual parties have
failed in good faith; or about the chances that such patho-
logical contracts can be performed without raising constant
disputes between parties. It seems that the main merit of
this judicial option and the random results of its implemen-
tation is to serve as the most powerful deterrent for parties
reluctant to negotiate.
••••••••••••••••••••••••••••••••
44 P. Dupichot, « User des prérogatives contractuelles », La Semaine
Juridique Entreprise et Affaires n° 25, 23 Juin 2016, 1375.
45 See F. Giancarli, « L’affaiblissement de la force obligatoire du contrat
dans le projet de réforme », BRDA, 1/16, p. 28.
46 B. Deffains, S. Ferey, « Pour une théorie économique de l’imprévision
en droit des contrats », RTD civ. 2010.719.
47 La Semaine Juridique Edition Générale n° 48, 26 nov. 2008, I 213 ;
« Réflexions sur l’avant-projet de réforme du droit des contrats », Ca-
hiers de droit de l’entreprise n° 6, nov. 2015, entretien 6.
48 B. Mercadal, Réforme du droit des contrats, éd. F. Lefebvre, 2016, n°
624.
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COLLOQUE
Provisional conclusions
Considering the number of uncertainties surrounding the
new legal provision introducing hardship into French con-
tract law, two predictions may be issued.
The first one is that, contrary to the legislature’s intent, it is
doubtful that this provision will necessarily make French
contract law more attractive and convince negotiating
parties to elect it as the applicable law for their contracts.
The second one is that, when French contract law applies,
the parties will be incentivised to resort to dedicated stipu-
lations dealing with performance risks. Once used to
prevent the application of the harsh principle of contract
intangibility, hardship and MAC clauses will now serve the
purpose of avoiding the new legal regime’s inconveniences.
However, even when defining the level of discretion con-
tracting parties enjoy in order to stipulate around it, Article
1195 appears difficult to handle.
As the non-acceptance of the materialised risk is an express
legal prerequisite for the application of hardship, there is
no question that contracting parties should be able to
define ex ante the risks they are willing to accept.
In absence of legal distinctions from Article 1195, it should
logically be inferred from the possibility to exclude risks
that the parties could also decide to resort to less drastic
arrangements and set up procedures dealing with risks
arising from unforeseeable changes of circumstances.
This solution finds some support in the report to the French
President of the Republic accompanying the Ordinance of
2016, clearly stating that the provisions of Article 1195 are
of non-mandatory legal nature.
The problem is that doubts have been cast on the accuracy
and scope of this statement, therefore weakening the foun-
dation of clauses containing provisions other than mere
risks acceptances. Moreover, a prominent author recently
contended that contracting parties may not use their con-
tractual freedom in order to deprive the victim of hardship
of the protection granted by Article 1195.49 In addition to
creating more uncertainty regarding the comprehension
and application of Article 1195, and undermining the secu-
rity offered by contractual stipulations on the matter, this
view, isolated so far, would amount to the odd result of
prohibiting the contractual re-establishment of pacta sunt
servanda, which has been a corner-stone principle of French
law in the past 140 years. Incidentally, this new theory of
hardship could therefore establish a more inflexible private
contract law than the one which has been applied in public
law for over a hundred years.
This is of course a major problem whose solution will de-
termine the magnitude of the reform. Indeed, we may see
all kinds of contractual clauses: symmetric or asymmetric
clauses dealing with bidirectional or unidirectional risks.
But if all types of clauses are available, including the ones
merely excluding the application of Article 1195, it is un-
likely that parties not having the bargaining power to
negotiate protective hardship clauses in the previous state
of French law will now the bargaining power to resist the
inclusion of clauses opting out of Article 1195. The 2016
reform then risks ending up as a mere reform on the books,
••••••••••••••••••••••••••••••••
49 B. Mercadal, Réforme du droit des contrats, éd. F. Lefebvre, 2016, n° 603
et 606.
 COLLOQUE / Alain Pietrancosta 7
 COLLOQUE

whose real impact will only be felt by negligent contracting

parties.
Dealing with all these questions raised by the interpretation
of Article 1195, we reach this paradoxical situation where
the legal provision introducing the hardship doctrine into
French contract law may, through its own imprecisions,
ambiguities and their consequent uncertainties, constitute
itself a source of hardship.

8 RTDF N° 3 - 2016  COLLOQUE / Alain Pietrancosta

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