Force Majeure Under French Law: What Article 1218 Really Excuses

Force majeure under French law: what Article 1218 really excuses

Force majeure is at once the most invoked and the most often refused defence in French contract litigation, and foreign businesses regularly overestimate what it covers. Article 1218 of the Civil Code defines it: an event beyond the debtor's control, which could not reasonably be foreseen at the conclusion of the contract, whose effects cannot be avoided by appropriate measures, and which prevents the debtor from performing its obligation. Each word is a condition, the courts apply them strictly, and most invocations fail on one of them: the event was foreseeable, its effects could have been managed, or performance was expensive rather than impossible.

This article sets out the three conditions and the case law that gives them content, the categories of events the courts accept and refuse, the impossibility requirement and its special rules for money debts, the exact effects of a temporary and of a definitive impediment, and the force majeure clauses that let the parties write their own regime.

Is your situation covered by force majeure?

The three conditions of Article 1218: beyond control, unforeseeable, unavoidable

The statutory definition does not repeat word for word the three criteria the courts used before the reform, exteriority, unforeseeability and irresistibility, but it corresponds to them in substance, and the earlier case law remains transposable:

• An event beyond the debtor's control. The event must not proceed from the debtor's own fault, which by definition lies within its control, and must be both unavoidable and external to it. Illness can qualify, since it is not in principle under the debtor's control (Cass. ass. plén., 14 avr. 2006). By contrast, the freezing of a debtor's bank assets, ordered by public authorities because of the debtor's own activities, is not beyond its control: the debtor placed itself in the legally defined conditions of the freeze (Cass. ass. plén., 10 juill. 2020, n° 18-18.542).
• Not reasonably foreseeable at the conclusion of the contract. An event that could reasonably have been foreseen, and avoided by appropriate measures, is not force majeure: a transporter whose premises were insufficiently secured against theft could not invoke the theft (CA Versailles, 21 avr. 2022, n° 21/03167). Foreseeability is measured against the circumstances and against the debtor's professional competence to foresee the event (Cass. 3e civ., 4 mars 2021, n° 20-14.509).
• Effects unavoidable by appropriate measures. This is the old irresistibility: the debtor must show that no appropriate measure could avert the event's consequences.

A constant of the case law completes the definition: force majeure can never be constituted by the act of the debtor itself, of its employees or of its substitutes (Cass. 3e civ., 25 mars 2021, n° 20-10.654). The debtor must have taken all the measures the circumstances required (Cass. com., 1 oct. 1997, n° 95-12.435). Failures of elementary precaution defeat the defence:

• the party charged with sending an urgent letter, who left on holiday the day after posting it and took no precaution to ensure its timely arrival, could not invoke the postal error that delayed it (Cass. 1e civ., 2 oct. 1984, n° 83-15.331);
• the party who sent a large cheque by ordinary post could not invoke its theft in transit (Cass. civ., 9 mai 1994, n° 91-21.876);
• the party who stored highly inflammable materials without appropriate fire precautions could not invoke the fire (CA Paris, 23 sept. 2021, n° 20/03239).

Even where the event is external, the judges verify the facts concretely: they must examine, for example, whether an armed robbery during a secured transport of mobile-phone products was not an event that could be foreseen (Cass. com., 22 janv. 2013, n° 11-28.083).

What French courts accept and refuse as force majeure: the case law by category

Natural events. Accepted: a tropical storm whose intensity and suddenness were an unforeseeable anomaly for the local climate (Cass. 2e civ., 5 janv. 1994, n° 92-13.853), a hurricane and a storm of exceptional violence, a fire destroying the premises and machines of a business entirely, exceptional snowfalls interrupting the power supply, a delivery delayed by a barge immobilised in ice, and the Covid-19 epidemic, assessed at 17 March 2020 (T. com. Évry, 1 juill. 2020). Refused: heavy rain not shown to be exceptional by the departmental weather records, where the necessary storm precautions had in any event not been taken (Cass. civ., 7 oct. 1987), the collapse of a badly maintained roof in an ordinary storm, the collapse of a disused quarry that had already produced collapses in the same area, and a flood invoked on the sole basis of a natural-disaster order (Cass. 2e civ., 10 déc. 2002).

Violence and war. Accepted: a fire following a burglary with no link to the tenant, a bomb attack, and the partial destruction of a building by terrorist charges where nothing suggested the building was a target (Cass. 3e civ., 28 janv. 1998). Refused: a state of war known to the parties, or foreseeable, at the conclusion of the contract.

Economic circumstances. Almost always refused, because they make performance onerous, not impossible: difficult conditions that made boiler assembly particularly expensive, the refusal of a subcontractor to carry out works in the time demanded, which did not make the debtor's own performance impossible, a supplier's cessation of business which the distributor was bound to anticipate and to cover within the agreed periods, a considerable drop in supplies with a price surge the seller could not show made delivery impossible, an exceptional summer drought where the buyer obtained the same goods from the seller's own supplier, the seller's resistance proceeding from speculation on rising prices (Cass. com., 4 janv. 1980, n° 78-13.978), and the brutal rise of iron prices for a professional of that market (CA Paris, 28 janv. 2009, n° 08/17748). The boundary was drawn by the Cour de cassation itself: where the rise in raw-material costs may have unbalanced the contract's whole economy and stripped the service provider's commitment of any real counterpart, the question of impossibility deserves examination (Cass. com., 29 juin 2010, n° 09-67.369). Where circumstances make performance excessively onerous but still possible, the applicable mechanism is hardship under Article 1195, with its renegotiation and judicial revision remedies, not force majeure.

Strikes. The dividing line is the debtor's grip on the conflict. Accepted: the strike of EDF personnel provoked by government wage decisions the utility could not resist (Cass. ch. mixte, 4 févr. 1983), a printing works that did everything in its power to limit the consequences, a prison guards' strike new in its form, and the rail strike of late 1995, which the SNCF could neither foresee, avoid nor work around (Cass. soc., 11 janv. 2000). Refused: a one-month strike that had ended more than six months before the delivery date, invoked to justify a year of delay (Cass. 1e civ., 16 mai 1977, n° 75-14.575), a dockers' strike that had been threatening for thirteen days, a local strike with an alternative route available, a strike provoked by the employer's own refusal to negotiate salaries, and the EDF strike against a privatisation project (Cass. 1e civ., 30 oct. 2008, n° 07-17.134).

Threats. A franchisor threatened with prosecution for refusal to sell was justified in breaching an exclusive-supply clause (Cass. com., 11 janv. 1984).

Acts of public authority. Accepted: an administrative decision strictly regulating the sale and allocation of the goods owed (Cass. com., 23 juin 1952), an interruption of rail traffic decided by the operator fearing a demonstration, an expropriation forcing a company out of the building housing its business six years into a fifteen-year telephone-installation lease, and an import prohibition unforeseeable for the importer (Cass. com., 1 oct. 1991). Refused: a refusal of planning permission the buyer knew to be likely from an existing prefectoral order (Cass. com., 12 mai 1980), customs difficulties the transporter knew perfectly well, and an expropriation where the termination of the employment contracts flowed from the employer's own choice not to continue the business elsewhere.

Performance must be impossible, not merely difficult or expensive

Even an event meeting the three conditions excuses nothing unless it made performance of the obligation absolutely impossible (Cass. 1e civ., 19 déc. 2000, n° 98-14.141), or forced the debtor to violate an obligation incumbent on it. An irresistible cyclone that partly destroyed a hotel did not make resumption of its operation impossible, and therefore did not justify dismissing all the staff (Cass. soc., 12 févr. 2003); an illness that merely makes the exercise of a profession more difficult does not make performance impossible (Cass. 3e civ., 22 janv. 2014, n° 12-28.246).

For money obligations the rule is absolute: the debtor of a contractual sum of money cannot escape its obligation by invoking force majeure (Cass. com., 16 sept. 2014, n° 13-20.306). The event may at most justify a simple delay in payment (Cass. 3e civ., 17 févr. 2010, n° 08-20.943). For obligations that are not pure and simple, the Civil Code distinguishes:

• cumulative obligations: the debtor is released only if the performance of every prestation owed is impossible (C. civ. Art. 1306);
• alternative obligations: impossibility of the chosen prestation releases the debtor (C. civ. Art. 1307-2); a debtor who has not chosen must perform one of the others (C. civ. Art. 1307-3), and is released of a prestation the creditor had chosen where force majeure makes it impossible (C. civ. Art. 1307-4); where all prestations become impossible, release requires force majeure for each (C. civ. Art. 1307-5);
• facultative obligations: the debtor is released as soon as the initially agreed performance becomes impossible (C. civ. Art. 1308).

Does your event pass the Article 1218 test?

The effects of force majeure: suspension or automatic resolution of the contract

The consequences depend on whether the impediment is temporary or definitive (C. civ. Arts. 1218 and 1231-1):

• Temporary impediment: performance of the affected obligations is suspended, unless the resulting delay justifies resolution of the contract. The debtor owes no compensation for the damage the delay causes. When the impediment ends, the contract resumes as it stood: its duration is not extended and no new conditions can be imposed.
• Definitive impediment: the contract is resolved by operation of law (de plein droit), and the debtor is definitively released, with no damages for the consequences of the impediment. Either party may invoke that resolution and, if the other resists, ask the court to record it; the judge does not pronounce the resolution, he acknowledges it.

The resolution operating by effect of the law, its scope is identical whether it results from force majeure or from an automatic termination clause, and each party may rely on it in the same conditions. Release works in both directions: the creditor of the unperformed obligation is also released of its own obligation, and is entitled to restitution of the price paid as consideration for the obligation that was not performed (Cass. com., 26 févr. 2025, n° 23-21.266). Two situations block the release: the debtor had agreed to bear the risk of force majeure, or it had been put on formal notice before the event occurred (C. civ. Art. 1351), subject to proof that the loss would have occurred even on timely performance (C. civ. Art. 1351-1).

Procedurally, the defence keeps its flexibility: a party does not waive force majeure by failing to raise it in the amicable phase and invoking it only in litigation (CA Paris, 4 avr. 2001), but the circumstances of the event must be established, and the judge appraises the constitutive facts sovereignly (Cass. 1e civ., 6 juill. 2022, n° 21-11.310, upholding a Covid-related refund of a deposit under the contract's own clause). The exoneration rules also extend beyond force majeure itself: the debtor is released, in whole or in part, where the damage is due to the victim's own fault (Cass. com., 27 juin 2018, n° 17-14.283), to the unforeseeable and irresistible act of a third party (Cass. 1e civ., 22 avr. 1981, n° 80-10.489), or to a defect of the thing, and compliance with an international sanction can justify non-performance (CA Paris, 16 janv. 2024, n° 22/13548). Where the victim contributed only in part to its own damage, the debtor is partially exonerated (Cass. com., 1 mars 2005; Cass. 1e civ., 1 juill. 2010, n° 09-13.896), but no exoneration is available to a debtor who committed an intentional fault. The burden throughout rests on the debtor invoking the event, and the defence fails where the circumstances of the loss remain undetermined (CA Paris, 29 mai 2013, n° 10/14262).

Force majeure clauses: writing your own regime

The statutory regime applies only in the contract's silence: the contractual arrangement of force majeure belongs to contractual freedom, and international practice runs on it. A well-drafted clause settles the points the statute leaves open:

• the events covered, bearing in mind that a clause merely listing events does not exempt them from judicial review: where the clause did not state that the listed events were automatically force majeure, the judge verified each statutory condition and refused the defence (Cass. com., 23 juin 2021, n° 19-21.919);
• the notification procedure, how and when the debtor must inform the other party that it invokes the event;
• whether both parties or only one may rely on the clause;
• whether the event must be certified by a third party, such as a chamber of commerce of the country where the impediment arose;
• the fate of the contract: suspension, catch-up arrangements, renegotiation or termination, and the treatment of sums already paid;
• whether the exonerating effect is kept or renounced: a debtor may validly agree to bear the risk of force majeure, in which case the event no longer releases it (C. civ. Art. 1351).

On international contracts, the incidence of force majeure is governed by the parties' clauses and, for what they leave open, by the law applicable to the contract, since that law determines the contract's effects; the parties sometimes submit force majeure to a specific law, even the law of the country where the event occurs. Arbitrators, for their part, tend to apply a substantive rule requiring an unforeseeable and irresistible event, without reference to national laws. Contracts exposed to trade measures should say expressly how refusals, reductions or withdrawals of import or export licences, embargoes and exchange-control measures will be treated: these events produce constant disputes where the contract is silent.

Frequently Asked Questions

This article is for general information only and reflects French law as published at the date shown above. It does not constitute legal advice. Always seek qualified advice before acting.