Book contents
- Frontmatter
- Contents
- Introduction
- The Reform of the French Law of Obligations: How Long will the Belgians Remain Napoleon's Most Loyal Subjects?
- Pre-Contractual Phase: Reflections on the Attractiveness of the New French Rules for the Parties to International Commercial Transactions
- Nullity in the Ordonnance
- A Tale of Novelty and Continuity: Exploring the Future Judicial Control of Employment Contracts in the French Contract Law Reform
- Introducing Imprévision into French Contract Law - A Paradigm Shift in Comparative Perspective
- Commercial Impracticability and the Missed Opportunity of the French Contract Law Reform: Doctrinal, Historical and Law and Economics Arguments - Comment on Lutzi's Introducing Imprévision into French Contract Law
- Price Reduction under the French Contract Law Reform
- The Measure of Damages in the French Contract Law Reform - Lessons from far more Inspiring Systems
- Set-off in the French Reform of the Law of Obligations: a Tale of Missed Opportunities?
- Fundamental Rights in the French Contract Law Reform
- Miscellaneous Endmatter
Commercial Impracticability and the Missed Opportunity of the French Contract Law Reform: Doctrinal, Historical and Law and Economics Arguments - Comment on Lutzi's Introducing Imprévision into French Contract Law
Published online by Cambridge University Press: 15 December 2017
- Frontmatter
- Contents
- Introduction
- The Reform of the French Law of Obligations: How Long will the Belgians Remain Napoleon's Most Loyal Subjects?
- Pre-Contractual Phase: Reflections on the Attractiveness of the New French Rules for the Parties to International Commercial Transactions
- Nullity in the Ordonnance
- A Tale of Novelty and Continuity: Exploring the Future Judicial Control of Employment Contracts in the French Contract Law Reform
- Introducing Imprévision into French Contract Law - A Paradigm Shift in Comparative Perspective
- Commercial Impracticability and the Missed Opportunity of the French Contract Law Reform: Doctrinal, Historical and Law and Economics Arguments - Comment on Lutzi's Introducing Imprévision into French Contract Law
- Price Reduction under the French Contract Law Reform
- The Measure of Damages in the French Contract Law Reform - Lessons from far more Inspiring Systems
- Set-off in the French Reform of the Law of Obligations: a Tale of Missed Opportunities?
- Fundamental Rights in the French Contract Law Reform
- Miscellaneous Endmatter
Summary
Introduction
Unforeseen circumstances pose one of the perennial dilemmas of private law: if due to unforseen circumstances performance becomes impracticable or even impossible, is a non-performing party then still liable out of the contract? Or might he be excused? In other words, should precedence be given to rules based on the adage pacta sunt servanda, or rather to excuses based on clausula rebus sic stantibus or other good faith principles? The French legislature clearly struggled with this dilemma in its recent adjustment of the Code civil, as can be seen from the Projet d'ordonnance of 2015 and the ordonnance no 2016–131 of 10 February 2016. Before, a seemingly endless parade of scholars, both within and outside France, discussed the current solution in the Code civil to the problem of unforeseen circumstances, but also the solutions proposed in various draft s, such as the Avant-projet Catala.
In the previous contribution to this volume, Introducing Imprevision into French Contract Law, A Paradigm Shift in Comparative Perspective, Tobias Lutzi not only analysed an impressive amount of French and foreign contemporary scholarship on – the traditional lack of – imprevision in French private law, but also assessed the current, proposed and recently adopted French solutions to commercial impracticability resulting from unforeseen circumstances. For this assessment, he compared the English, German (in particular) and the current, proposed and new French solutions to unforeseen circumstances with each other, thereby highlighting lessons to be learned from the German solution. The focus of Lutzi's comparison is mainly at a conceptual level, namely whether the systems compared offer an adequate exception to rules based on pacta sunt servanda and he argues that the German solution to the problem of unforeseen circumstances – to which the new Article 1195 Code civil will be quite similar – is to be preferred over the English, and the current and previously proposed French solutions.
- Type
- Chapter
- Information
- The French Contract Law Reform: a Source of Inspiration? , pp. 113 - 130Publisher: IntersentiaPrint publication year: 2016