This week, we will have a special look at a case which was held in 1996 and became the starting point of a famous a series of decisions, also known as the 'Chonopost' saga. In the first case it was decided that the relevance of an exclusion clause of a contract, limiting the liability of one party, could be controlled by th judges on the basis of article 1131 of the civil code.
Source of a lot of academic works, this case allowed the judges to scruntinize the terms of a contract and to remove those obviously making the contract unbalanced. What has been surprising in this decision was the ground. Using the 'cause' as a basis of a judicial control of the terms of a contract considerably extend its scope of application. In the case the clause was refused because contradicting an 'essential obligation' of the contract, withdrawing the cause of the obligation. We were close to accept such an ability for the judges as soon as in 1996, but several cases came to limit the scope of the input of the first Chronopost case.
The commercial Chamber of the cour de cassation has come to say in 2002, that in the case of a clause of 'legal' origin, the faute lourde was necessary to exclude an exclusion clause, the contradiction of an 'essential obligation' could not intervene. That was confirmed by a decision of the combined Chamber in 2005, gathering both civil and commercial Chamber, which also told that when a clause is not of 'legal origin', the Chronopost input of 1996 was still valid.
The discretion of the judges as to this matter seems restricted compared to the one granted by the section 11 of the Unfair Contract Terms Act 1977, which submits the validity of an exclusion clause to a test of 'reasonableness'.