الألية المستحدثة للضروف الطارئة في قانون العقود الفرنسي الجدسد

Abstract EN

After long hesitation and constant calls from jurisprudence, the French legislator introduced into his civil law a special mechanism to deal with emergency conditions and their impact on contracts, on the occasion of amending the Obligations and Contracts Law by a decree issued in 2016, as it included this mechanism in Article 1195 of its Civil Code.

This article stipulated three conditions for the mechanism to work :That unforeseen circumstances arise at the time of the conclusion of the contract, the contractor did not accept a condition in the contract bearing its risks, and that these circumstances lead to the implementation of one of the parties of his obligations becoming excessively costly.

Then the text indicated the steps that must be followed in order to arrange the text for its effects, so the party affected by the emergency situation must first initiate a request to renegotiate the contract from his partner in a contract, and if the other party refuses or negotiations fail after they have begun, the two parties may agree either to terminate the contract or refer the matter to the judge with a joint request by them to qualify it as he deems appropriate, and if they do not agree on any of these solutions, one of the parties may separately request the judiciary to review the contract to amend its content or to put an end to the contract.

It seems clear that the French legislator, in organizing emergency circumstances, gave priority to friendly agreement solutions, while making the judge’s intervention as a last resort, and then allowing the judge at the request of the two parties or one of them to reach in his intervention to the point of terminating the contract and not just amending it, and this is inconsistent with the purpose From the theory of emergency conditions, as other laws adopted, represented in preserving the contract by restoring the burdensome obligation to a reasonable extent and not canceling it, and most importantly of all that the French legislator made the text of Article 1195 a complementary text, not an order to allow the parties to exclude it on a condition in the contract, and this is what would make This condition, which is feared to be a standard condition, is allowed to neutralize the entire mechanism.