A supply chain breaks down overnight. A currency shock doubles input costs. An export ban closes a key market without warning. For businesses operating under French law contracts, the threshold question is immediate: does the event trigger force majeure (force majeure) or the imprévision (hardship) doctrine, and what relief does each actually deliver?
French contract law provides two distinct responses to business disruption: force majeure. This discharges or suspends performance when an irresistible and unforeseeable external event makes performance impossible. Additionally. Hardship. known under French civil law as imprévision. which allows a party to renegotiate or ask a court to adapt a contract when changed circumstances make performance excessively onerous but not impossible. The 2016 reform of the French Civil Code introduced statutory hardship provisions for the first time, fundamentally reshaping the landscape. International businesses and their counsel must understand both mechanisms and their operational limits before a crisis strikes.
This analysis covers the doctrinal foundations of each doctrine, the gap between statutory text and court practice at the Cour de cassation (France's Supreme Court for civil and commercial matters). Cross-border implications for European counterparties. Additionally, a practical strategy for businesses transacting under French law today.
Doctrinal foundations: two doctrines, two thresholds
Force majeure in French law is a classic civil law instrument. It operates on three cumulative conditions. The event must be external to the party seeking relief. It must have been unforeseeable at the time the contract was formed. And it must render performance impossible – not merely more difficult, more costly, or commercially inconvenient.
Under French commercial legislation and the Civil Code provisions governing obligations, impossibility is the operative threshold. The word carries significant weight. Courts have consistently held that financial hardship, even severe hardship, does not amount to impossibility. A contractor facing doubled raw material costs is not excused. A freight operator facing congested ports must still perform. Only when the contractual obligation itself cannot physically or legally be carried out does force majeure apply.
The reform of French contract law, which came into force in 2016, codified and refined these conditions. It also introduced a key temporal mechanism: where the impossibility is temporary, the contract is suspended rather than terminated. Where it is permanent, the contract may be dissolved. This distinction matters enormously in practice. A business that terminates a contract prematurely – invoking force majeure in response to what turns out to be a temporary impediment – may face damages claims from the counterparty.
Imprévision, by contrast, operates at a lower threshold. The new statutory provisions, which represent a significant departure from the pre-2016 position, permit a party to request renegotiation where an unforeseeable change of circumstances makes performance excessively onerous for one party. Performance remains possible. It simply becomes disproportionately burdensome relative to what was contemplated at contract formation.
The difference in threshold – impossible versus excessively onerous – is not merely academic. It determines which doctrine a party can invoke, how the counterparty must respond, and what a court can ultimately do. Force majeure can terminate the obligation. Hardship, even when judicially invoked, results in adaptation or dissolution of the contract, not automatic release from performance.
Practitioners in France note that the pre-2016 common law doctrine in England was long criticised for rejecting hardship altogether under the frustration doctrine's strict impossibility requirement. The French reform moved in the opposite direction – creating a statutory hardship mechanism while retaining force majeure for true impossibility cases. For common law-trained counterparties negotiating French-governed contracts, this is a material difference worth understanding before execution.
The statutory regime and the court practice gap
The codification of imprévision in 2016 appeared to resolve a long-standing controversy. Before the reform, the Cour de cassation had repeatedly refused to recognise hardship as a ground for contract adaptation in civil matters, even as administrative courts applied it to public contracts. The legislature overruled that position – at least prospectively.
Under the statutory provisions, the procedure operates in stages. A party experiencing hardship must first request renegotiation from the counterparty. This is not optional. Failure to request renegotiation before going to court is procedurally fatal to the claim. The renegotiation period is not defined with precision by statute, but must be conducted in good faith. If renegotiation fails or the counterparty refuses to engage, the parties may jointly ask a court to adapt the contract. If they cannot agree to go to court together, either party may ask the court to dissolve the contract – but dissolution, not adaptation, is the only unilateral judicial remedy available at that stage.
This procedural architecture has a significant practical consequence. A party cannot go to a French court and ask for a revised contract price or altered delivery terms simply because circumstances changed. The court's power to adapt the contract is contingent on both parties consenting to judicial intervention. If the counterparty refuses, the aggrieved party's only court remedy is dissolution.
In practice, this creates leverage asymmetry. A counterparty that has benefited from the changed circumstances – a buyer whose input costs fell while the seller's costs rose – has every incentive to refuse renegotiation and refuse joint court application. The seller is then left with dissolution as the only judicial exit, which may not be commercially desirable if the contract has residual value or the market alternative is worse.
Courts in France have begun to address the edges of this system. The Cour de cassation has clarified that the renegotiation duty is a genuine obligation, not a formality. A party that sends a single perfunctory email and immediately files a court application has not satisfied the requirement. Equally, courts have scrutinised whether the change in circumstances was truly unforeseeable – a condition that mirrors the force majeure requirement and creates a common analytical battleground.
One non-obvious point emerges clearly from post-2016 litigation: parties that include bespoke hardship clauses in their contracts – defining their own renegotiation mechanisms, timelines, and consequences – largely displace the statutory regime. French commercial parties with strong bargaining positions frequently insist on customised hardship language that narrows or expands the statutory defaults. International businesses entering French law contracts should treat hardship clause negotiation as a priority, not a boilerplate concern. For a detailed look at how related commercial disputes are handled procedurally, see our analysis of commercial dispute resolution in France.
Force majeure in commercial practice: where the doctrine works and where it fails
The foreseeability condition generates the most litigation in force majeure cases. Courts apply it at the time of contract formation, not at the time the event occurs. An event that was well-known as a general risk at the date of signing. pandemic risk, geopolitical instability in a given region. Currency volatility in an emerging market. will rarely qualify as unforeseeable even if its specific manifestation was not predicted.
This temporal anchoring has repeatedly surprised international clients. A European exporter who signed a long-term supply contract covering a politically unstable region and later faced export restrictions found that French courts were unsympathetic. The political risk was considered foreseeable at formation even if the specific decree was not. The lesson is that risk allocation clauses must be drafted with this analytical lens in mind.
The irresistibility condition – sometimes rendered as the requirement that the event be beyond the party's control – is equally demanding. Courts examine whether the party took all reasonable measures to perform despite the event. A logistics provider who faced a transport disruption on one route but had viable alternative routes will not satisfy the irresistibility condition. The alternative must itself be legally or physically unavailable, not merely more expensive.
Where force majeure does succeed, the consequences depend on duration. Temporary impossibility suspends the contract. During the suspension period, the party in question is released from the obligation to perform but is also released from receiving counter-performance. The symmetry matters: a buyer who invokes force majeure suspension may not be entitled to receive goods during the suspension period even if the seller is ready to deliver through alternative means.
The notification obligation deserves specific attention. French commercial legislation – and well-drafted contracts – require prompt notice to the counterparty once force majeure is identified. Delayed notification can be treated as a breach of the good faith obligation that runs through French contract law. Courts have awarded damages to counterparties who were left in uncertainty because the invoking party delayed disclosing the situation. International businesses accustomed to common law systems – where good faith is not a general implied term – often overlook this requirement.
Businesses engaging French commercial entities structured as a SARL (société à responsabilité limitée, roughly equivalent to a limited liability company) or an SAS (société par actions simplifiée. A simplified joint stock company) should note that force majeure analysis applies at the contractual level, not the corporate entity level. The Code de commerce (French Commercial Code) governs commercial relationships between these entities, and its provisions interact with the Civil Code force majeure rules. The interplay between entity type and contract form can affect how courts interpret the parties' mutual obligations. For businesses considering litigation or arbitration proceedings arising from failed performance, our team's work on litigation and arbitration in France provides further context on procedural strategy.
Cross-border implications for European businesses
French law force majeure and hardship provisions create specific challenges in cross-border contracts across Europe. Three scenarios arise with particular frequency.
First, contracts that designate French law as the governing law but are performed partly or wholly outside France. In this configuration, the force majeure analysis is conducted under French law even if the performance impossibility arises from the laws or physical conditions of another country. The externality condition – the requirement that the event be external to the party – must be assessed through a French law lens. A German buyer claiming force majeure due to a domestic regulatory restriction must demonstrate that restriction's externality and irresistibility under French law standards, not German law standards.
Second, contracts that involve French parties but are governed by a non-French law. Where English or Dutch law governs, the hardship doctrine is essentially absent unless the parties have included a bespoke hardship clause. French contracting parties – particularly those that routinely operate under French law internally – sometimes fail to appreciate that a non-French governing law contract will not automatically provide the imprévision protection they are accustomed to. Legal advisers working on Iberian or Southern European commercial contracts have observed a similar gap: see our analysis of related issues in force majeure and hardship under Portuguese law for a comparative perspective.
Third, enforcement scenarios. Where a French court has dissolved or adapted a contract under the hardship regime, enforcing that decision in another EU member state through the Brussels I Recast Regulation mechanism requires careful consideration. A judgment dissolving a contract will generally be recognised. A judgment adapting a contract – adjusting price or terms – is a more unusual instrument and may raise questions about the scope of the court's power in the enforcing jurisdiction.
For businesses operating through supply chains that span multiple EU jurisdictions, the practical recommendation is to standardise governing law and hardship clause language across the chain rather than relying on each national statutory regime. The statutory regimes diverge on the key details: what counts as excessive onerousness, whether adaptation or dissolution is the default remedy, and how quickly the renegotiation duty must be exercised. A chain that mixes French, German, and Spanish law contracts will produce inconsistent force majeure and hardship outcomes at different links.
Enforcement mechanics also deserve specific attention for cross-border disputes. In French proceedings, a huissier de justice (judicial enforcement officer, broadly equivalent to a process server and enforcement agent) plays a central role in serving process and enforcing court orders. International businesses unfamiliar with the French procedural system often do not account for the huissier de justice's role in the timeline for proceedings. Civil procedure in France follows structured stages, and a statement of claim must comply with specific formal requirements before it can be filed with the competent court. Court filing errors at the statement of claim stage can cause significant delay.
Interim injunctions are available in French proceedings to prevent a counterparty from treating itself as released from a contract prematurely. A party that receives a force majeure notice it believes is unfounded should consider seeking an interim injunction or a référé (summary proceedings) order from the president of the commercial court to preserve the contractual position pending full judgment enforcement proceedings. This procedural avenue is often underused by international clients who are unfamiliar with the speed and accessibility of French summary proceedings. Judgment enforcement, once obtained, follows distinct pathways depending on whether the debtor holds assets in France or abroad.
To explore how strategic decisions about French forum and governing law interact, contact us at info@ferrazwhitmore.com for a preliminary assessment of your cross-border contractual position.
Strategic recommendations for businesses operating under French law contracts
Several practical measures reduce exposure to force majeure and hardship disputes before they arise. They also improve a party's position if a dispute occurs.
At the drafting stage, a well-constructed force majeure clause should define the events that qualify, set the notification timeline. Specify whether suspension or termination is the default remedy. Additionally, address what happens to prepaid amounts and work in progress. Relying solely on the statutory provisions leaves each of these questions to court interpretation. The statutory conditions are minimum baselines, not optimal defaults.
A hardship clause should go further. It should define "excessive onerousness" by reference to a specific trigger – a cost increase threshold, an index movement, or a regulatory change – rather than leaving the assessment open-ended. It should set a renegotiation timetable with milestones. And it should allocate the consequences of failed renegotiation clearly, specifying whether dissolution or adaptation is the preferred outcome and whether arbitration or court proceedings govern the dispute.
At the operational stage, the notification obligation is the most time-sensitive. As soon as a potential force majeure event or hardship trigger is identified, notice should be given in writing. The notice should describe the event, its connection to the contractual obligation, the measures being taken to mitigate it, and the expected duration. An inadequate or delayed notice creates a parallel breach claim that can undermine an otherwise valid force majeure defence.
Where a counterparty gives notice claiming force majeure or hardship, the recipient should respond promptly and substantively. Silence or delay can be interpreted as acquiescence. The response should reserve all rights, request documentary evidence of the claimed event, and – if the claim appears unfounded – give notice that the invoking party remains obligated to perform. A legal assessment of whether the force majeure or hardship conditions are met should be obtained quickly. The window for procedural action, including seeking interim relief, is short.
For businesses in long-term supply contracts, periodic contract review to assess whether hardship trigger conditions are approaching is a useful risk management tool. Waiting for a crisis to review the contract language is consistently more costly than proactive monitoring.
Self-assessment: this strategic framework applies if one or more of the following conditions are present. Your contract is governed by French law or performance takes place predominantly in France. Your contract lacks explicit force majeure or hardship clause definitions. You have received or are contemplating giving a force majeure notice. You are negotiating a commercial contract with a French SARL or SAS counterparty and want to ensure adequate risk allocation. Your supply chain includes French-law-governed links alongside contracts under other European systems.
Before initiating any hardship renegotiation or force majeure claim. Verify the following: the notice requirement under your contract and its deadline. whether the contractual force majeure definition is more or less restrictive than the statutory conditions. whether your contract includes a dispute resolution clause that diverts matters to arbitration before court. whether you have documented the event and its impact with sufficient specificity to withstand judicial scrutiny. and whether cross-border enforcement of any eventual judgment is likely to be required.
Outlook and regulatory trajectory
The 2016 French Civil Code reform represented the most significant change to French contract law in over two centuries. Its force majeure provisions clarified the existing position. Its hardship provisions created new ground. But the statutory text is still maturing through judicial interpretation, and several questions remain open.
The Cour de cassation's developing case law on what constitutes "excessive onerousness" under the hardship regime will be among the most commercially significant doctrinal developments of the coming years. Early indications suggest that courts apply a high bar. consistent with the civil law tradition of protecting contractual certainty. and that the requirement of unforeseeability is assessed with the same rigour applied in force majeure cases. A party that seeks to invoke hardship for a risk category that was visible at contract formation is unlikely to succeed.
At the European level, there is no harmonised force majeure or hardship doctrine. The EU Commercial Agency Directive, the Recast Brussels I Regulation on jurisdiction, and the Rome I Regulation on governing law all touch adjacent issues, but none creates a unified substantive hardship rule. This means that the French statutory regime remains a national instrument, and cross-border contracts must be assessed jurisdiction by jurisdiction.
Climate-related disruptions, geopolitical realignment, and energy price volatility have elevated the practical importance of both doctrines. Businesses that previously treated force majeure as a theoretical boilerplate concern now face real-world force majeure and hardship triggers with regularity. The gap between a generic standard-form clause and a carefully negotiated, jurisdiction-specific provision has never been wider – or more consequential.
Legal experts advising on French-governed commercial contracts increasingly recommend building hardship and force majeure provisions as integrated risk allocation tools rather than standalone protective clauses. That means thinking through the full chain of consequences at drafting stage: what events qualify, how they are notified and documented, what renegotiation looks like, and what happens if it fails. A lawyer in France with cross-border experience across civil and common law systems can bring additional analytical depth to this work, particularly where the contract involves counterparties from different legal traditions.
For a tailored strategy on force majeure and hardship clause drafting or dispute resolution in France, reach out to info@ferrazwhitmore.com.
Frequently asked questions
Q: Does the COVID-19 pandemic qualify as force majeure under French law for contracts signed before 2020?
A: French courts have not adopted a uniform position treating the pandemic as automatic force majeure. The analysis turns on the specific contractual obligation, the date of contract formation, and whether the party invoking force majeure can demonstrate true impossibility of performance rather than increased cost or difficulty. Contracts concluded after pandemic risk became publicly known face a particularly high foreseeability hurdle. Engaging a lawyer in France with experience in commercial litigation is essential before invoking or contesting pandemic-related force majeure claims.
Q: How long does a hardship renegotiation process typically take before a French court can intervene?
A: The statute does not prescribe a fixed renegotiation period, but courts in France expect renegotiation to be conducted in good faith over a reasonable timeframe before judicial intervention is sought. In practice, this generally means several weeks to a few months of documented renegotiation. Rushing to court without genuine renegotiation attempts risks having the claim dismissed on procedural grounds. Dissolution proceedings, if renegotiation fails entirely, can add further months depending on court workload and procedural complexity.
Q: Can parties contract out of the French statutory hardship regime?
A: Yes. The French statutory hardship provisions apply by default but are not mandatory rules. Parties may exclude or modify the regime by including a bespoke hardship clause or by expressly stating that no hardship adjustment is permitted. Many international commercial contracts governed by French law do exactly this. A law firm in France advising on international contracts will typically recommend addressing hardship expressly in the contract to avoid uncertainty about the statutory defaults.
About Ferraz & Whitmore
Ferraz & Whitmore is an international law firm based in Lisbon, advising business clients across 46 jurisdictions. Our commercial litigation and contract law practice covers force majeure, hardship, and business disruption claims under French and other European legal systems. We combine Portuguese civil law expertise with English common law tradition. a dual perspective that brings particular analytical depth to disputes arising under French law contracts. There. The interaction between civil law doctrine and international commercial practice is decisive. Our attorneys have advised on force majeure and hardship matters in both court and arbitration proceedings across civil law and common law systems. Acting for international entrepreneurs, institutional investors. Additionally, in-house legal teams who need results-oriented counsel. The firm's Lisbon base provides direct access to Portuguese and EU regulatory systems, while our common law expertise supports enforcement and arbitration strategies in English-speaking jurisdictions. To discuss how French contract law applies to your specific situation, contact us at info@ferrazwhitmore.com.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.