Force majeure and unforeseen circumstances: mastering articles 1218 and 1195 of the Civil Code

## Force majeure and unforeseen circumstances: two legal regimes in the face of the unforeseen Managing unpredictable events represents a major challenge for any company bound by contract. Since the [2016 reform of contract law](/fr/blog/clause-hardship-contrats-commerciaux-securite-juridique), the *Code civil* (Civil Code) has codified two essential mechanisms: *force majeure* (force majeure) in Article 1218 and *imprévision* (unforeseen circumstances) in Article 1195. These provisions, although distinct in their conditions and effects, offer companies levers for adaptation in the face of economic upheavals. The distinction between these two regimes dictates your legal strategy. *Force majeure* characterizes the [total impossibility of performance](/fr/blog/clause-hardship-contrats-commerciaux-securite-juridique), while *imprévision* concerns a performance that has become excessively onerous but not impossible. This nuance determines the appropriate recourse depending on your contractual situation. This article clarifies the conditions for applying each mechanism, their respective legal effects, and contractual drafting strategies to optimize your protection. ## The *force majeure* regime: absolute impossibility of performance Article 1218 of the *Code civil* defines *force majeure* as "an event beyond the control of the debtor, which could not reasonably have been foreseen at the time the contract was concluded and whose effects cannot be avoided by appropriate measures." ### The three cumulative conditions for *force majeure* **The absence of control by the debtor** replaces the old condition of exteriority. This criterion covers a broader spectrum of situations, allowing for the inclusion of internal events such as the debtor's illness, provided they are beyond their control. The event must not result from the debtor's conduct. **Unforeseeability** is assessed on the day the contract is formed. This condition is measured by reference to a prudent and diligent contracting party, taking into account the circumstances of place, time, and season. Thus, a flood on land known to be flood-prone cannot constitute a case of *force majeure*. **Irresistibility** requires a total impossibility of performance. The effects of the event cannot be avoided by appropriate measures, and the impossibility must be total and definitive. The obligation must be performed even if it is very onerous and leads the debtor to ruin. ### The legal effects of *force majeure* *Force majeure* produces automatic effects depending on the nature of the impediment. If the impediment is temporary, performance is suspended. If the impediment is definitive, the [contract is terminated by operation of law](/fr/blog/liquidation-judiciaire-rang-creanciers-cloture). Temporary suspension keeps the contract alive until the event disappears. The delay in performance cannot be attributed to the party affected by *force majeure*. In contrast, definitive termination annuls the contract without damages, with retroactive effect for instantaneous contracts and only for the future for [successive performance contracts](/fr/blog/agent-commercial-statut-commission-indemnite-fin-contrat). ## *Imprévision*: renegotiation in case of excessively onerous performance Article 1195 stipulates that in the event of an unforeseeable change of circumstances rendering performance excessively onerous for a party who had not accepted to assume the risk, that party may request a renegotiation of the contract. ### Conditions for applying *imprévision* **The unforeseeable change of circumstances** must occur after the contract is formed. The term "change" is very general and does not require a criterion of suddenness or brutality. It is not a disruption, and the change can occur over time. Circumstances refer to a set of external facts affecting contract performance, whether commercial, financial, regulatory, scientific, or technological. **Excessively onerous performance** does not mean impossible. *Imprévision* implies performance that has become excessively onerous but is still possible, unlike *force majeure* which implies total impossibility. Classic fluctuations in a volatile market are not sufficient. A professional operator is deemed to know the ordinary hazards of their sector. **The absence of risk acceptance** is a crucial condition. In a 2023 judgment by the Paris Commercial Court, a company was unable to prove that it had not accepted the risk of a cost increase, which led to the rejection of its claim. ### The mandatory renegotiation procedure Article 1195 requires the party invoking *imprévision* to continue to perform its obligations during renegotiation. Suspending deliveries or ceasing payments transforms the request into a contractual abandonment. The request for renegotiation is a condition for the admissibility of judicial review. Recent judgments by the Paris *tribunal judiciaire* (judicial court) confirm that one cannot take the law into their own hands. Refusal to renegotiate remains free and does not constitute a fault. ## Judicial intervention: adaptation or termination of the contract ### The judge's powers in matters of *imprévision* In the absence of an agreement within a reasonable time, the judge may revise the contract or terminate it, on the date and under the conditions he sets. The judge's power is very extensive, as he can modify all necessary clauses to ensure that performance loses its excessively onerous character. Article 1195 does not specify any standard or criterion for the judge. The assessment is entirely free and sovereign, creating an element of uncertainty and judicial insecurity. The arbitral forum offers a certain degree of attentiveness and procedural comfort for the analysis of complex contracts. ### Recent case law: a restrictive application The Bordeaux Court of Appeal ruled in 2025 that unilateral suspension transforms the renegotiation request into a wrongful abandonment and opens the way to termination at the defaulting party's expense. The Versailles Court of Appeal dismissed a claim due to a lack of probative evidence establishing the reality of the renegotiation proposals. Courts strictly apply the temporal condition: Article 1195 applies only to contracts concluded after October 1, 2016, and the entry into force of the text cannot retrospectively make the refusal to renegotiate wrongful. ## Contractual strategies: risk prevention and management ### Adapted *force majeure* clauses Parties may enumerate cases constituting *force majeure*, provided they are precisely defined. An effective clause must: - List events considered as *force majeure* - Provide for notification procedures (deadlines, form) - Organize consequences (suspension, termination, cost allocation) - Expressly exclude certain professional risks ### Contractual management of *imprévision* Companies can exclude Article 1195 or draft a tailored revision (*hardship*) clause, which specifies the conditions and terms of anticipated revision. These legal mechanisms respond to different situations and can coexist in the same contract. An indexation clause often neutralizes Article 1195. A comprehensive clause implies acceptance of the risk, while a partial clause may justify recourse to the legal mechanism if the imbalance exceeds what indexation could correct.

**Criterion**	**Force majeure (Art. 1218)**	**Imprévision (Art. 1195)**
**Nature of impediment**	Total impossibility of performance	Excessively onerous performance
**Effect on contract**	Suspension or automatic termination	Mandatory renegotiation
**Judicial intervention**	Automatic (termination *de plein droit*)	Upon request after negotiation failure
**Scope of application**	All contracts	Contracts concluded after October 1, 2016
**Monetary obligations**	Never exempted by *force majeure*	Possible revision of terms

## Related articles - [Hardship clause: securing your contracts against economic crises](/fr/blog/clause-hardship-contrats-commerciaux-securite-juridique) - [Construction subcontracting: the 2-tier maximum rule applies from 2026](/fr/blog/limitation-sous-traitance-2-niveaux-2026-btp) - [Commercial agent: status, commissions and end-of-contract indemnity](/fr/blog/agent-commercial-statut-commission-indemnite-fin-contrat) ## Key takeaways • **Fundamental distinction**: *force majeure* addresses impossibility of performance, *imprévision* excessively onerous performance • **Strict conditions**: the three criteria for each mechanism (control, foreseeability, irresistibility for *force majeure*; unforeseeability, onerous nature, absence of risk acceptance for *imprévision*) are cumulative • **Regulated procedure**: *imprévision* requires a prior attempt at renegotiation and continued performance during discussions • **Contractual arrangement**: since both regimes are *supplétifs*, tailored contractual drafting optimizes legal protection • **Restrictive jurisprudential application**: courts prioritize legal certainty and require documented evidence ## What are the main differences between *force majeure* and *imprévision*? *Force majeure* makes contract performance irresistibly impossible, whereas *imprévision* makes performance "excessively onerous" but not irresistible. The former leads to automatic suspension or termination of the contract, the latter requires prior renegotiation. ### How to prove the unforeseeable nature of an event? Unforeseeability is proven through documentary evidence: contract date, cost traceability, comparison with reference indices, formal renegotiation process. Every link must be documented before the first hearing. Unforeseeability is assessed on the day the contract is concluded. If the event was foreseeable, the debtor is deemed to have accepted the risk. ### Can monetary obligations be exempted by *force majeure*? No. Case law consistently holds that monetary obligations can never be exempted by *force majeure*. Even in the event of an exceptional occurrence, the debtor remains obliged to pay their debts, which the *Cour de cassation* (Supreme Court) confirmed for commercial rents during COVID-19. ### How to draft an effective hardship clause? A *hardship* clause must explicitly state the conditions and terms for anticipated revision. The exercise should ideally involve, in addition to the legal department, financial, commercial, and market analysts. A well-drafted *hardship* clause takes precedence over Article 1195 and defines its own conditions, often more flexible than the legal text. ### What deadlines must be met to invoke *force majeure*? Notification must be made immediately or within the period stipulated by the contract (generally 15 to 30 days). Late notification significantly weakens the legal position and can be interpreted as an *ex post facto* attempt at justification.

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