Impossibility of performance
Three countries, three notions of impossibility:
In France, impossibility is called ‘force majeure’ and defined in the articles 1147, 1148 and 1722 C.civ. Traditionally, the notion has to satisfy three conditions to be applied: be irresistible, unforeseeable and be external to the debtor. But French case-law made some adjustment to the theory of force majeure to solve legal disputes like in Cass. Civ 1re 9 March 1994 which qualifies an event which is unavoidable as constituting a case of force majeure even if it could be foreseen. It is also the case with Cass civ 1ère 24 January 1995 which told that an internal event as a strike can have an extraneous character if it affects the public.
In Germany, the relevant notion is the subsequent impossibility (“Unmöglichkeit” in general). This notion is much wider and flexible than the French force majeure. The BGB does not require the event to be unforeseeable, nor a fault on the part of the debtor. Thus a party can merely be discharge on the ground of impossibility like in OLG Düsseldorf, 30 December 1964. German law has the particularity to treat all cases of impossibility in the same way whether the impossibility is caused by the debtor or by an extraneous event. In other jurisdiction, it would be called a “breach of contract”.
In England, impossibility is labelled frustration and it is between the French ‘force majeure’ and the German ‘Unmöglichkeit’. Impossibility is perceived less narrowly than under French law since the notion that something rendering the contract “radically different from what was in the contemplation of the parties” as in the Suez Canal case. But English law does not permit judges to adapt contracts in the event of frustration as in Germany. Consequence: The distinction between breach of contract and impossibility is clearer.
Pierre-Patrice Tifi Mambi