Assessment VII – Théorie de l`Imprévision
The projects for the reform of French contract law give three different solutions as how to overcome the strict refusal of the theory of imprévision by the civil law courts. Compared to the Projet-Catala and the Propositions de réforme du droit des contrats under the direction of F. Terré, the Avant projet du gouvernement de décembre 2008 suggests the institution of the theory of imprévision a minima.
Although the theory of imprévision is not unknown to the French legal system (e.g. in administrative law, but also in the Code civil: the heir can ask for judicial revision of the charge affecting the donation or heritage, art. 900-2 or the possibility for the divorced husband/wife debitor of a compensatory prestation to demand its revision or suppression, art. 275, al. 2 and 276-3, or the right of the conferrer to take the object, art. 1889, or the right of the mandatoryto terminate the mission, art. 2007, al. 2, or in the Code d`assurance: art L. 113-4 the right to terminate the contract in case of aggravation or disappearence of the risk or art. L. 49-420 du 25 mars 1949, art. 4, al. 4, rédact. L. 63-628 du 2 juill. 1963 the power of the juge to revise the rentes viagères). The French fear too much power of the judge to intervene. In the French legal system the autonomie de la volonté des contractants is to be protected as the heart of contract law. For French lawyers, the possibility for the judge to re-establish the contractual balance may be a form of justice, but is not droit. The other extreme of justice made by the courts, often argued by anti-imprévisionistes, is a system completely subordinated to the free appreciation of its judges, what also leads to incertainty and injustice. Some French authors warn clearly about the risk of the dissolution of the norm and of 500 million Europeans being subordinated to arbitrary decisions of judges.
Art. 136 of the Avant projet of the government regards these concerns. According to the projet de réforme the court can adapt the contract but only under the condition of the consentement des deux contractants. This is the highest degree of innovation realisable in France at the moment, not heurting the autonomie de la volonté as a révision judiciaire even limited to the sole réfaction of obligations, and not expanded to refection, would. The majority of French lawyers seems to admit that even if the parties have not included a hardship clause, they might not have omitted to do so intentionally. French authors appear not to exclude anymore the possibility of the existence of a clause résolutoire sous-entendue, the condition rebus sic stantibus, as the parties can not want what they don`t know or think will happen. But for the moment, the French legislator finds it extravagant enough to introduce the possibility of adaption by the judge subject to the consent of the parties. My explication for art. 136 disposing that the judge "may put an end to the contract from a date and on conditions that the court may determine" is, that there is a difference between allowing the court to terminate a convention and giving him the power to force parties to continue performing a modified convention to which they haven`t given their consent. For now it is acceptable to confer to the judge the power to terminate the contract after failed renegotiation, even the power to impose the conditions and the datre of termination. But still the mistrust of harmonisation of juridical systems and the fear of a deterioration persists. New legal instruments, as the power of the judge to adapt conventions as in the German juridical system, will continue to be examined suspiciously. But nevertheless the reform is the first step of a change that might lead to further legal developments that are at the moment unforseeable... April, april!