" The paper tiger is the literal translation of the Chinese 'zhǐ lǎohǔ' (紙老虎), which refers to something that appears threatening but is actually harmless " (Wikipedia definition).
The (relative, since it is ultimately only a subject stirring up lawyers) uproar caused, at the time of the reform of contract law, by the introduction of the treatment of unforeseen circumstances and the effacement of the binding force of the contract, is long gone.
Only those who have not been interested in the concrete application of the provisions of Article 1195 of the Civil Code (an application which was very predictable) still believe in the usefulness of this provision, which if it can exist, is not necessarily the one we think it is.
In summary, for those who do not have the desire or the courage to go to the end of this article, whose purpose is to make an observation and to make suggestions, this provision does not allow for the easy termination or modification of a contract when difficulties are encountered in its execution following a sudden change in the situation that led to its conclusion.
Therefore, there is no point in having great hopes or excessive fears regarding the implementation of this provision.
Why this comparison to a paper tiger?
Because it is very difficult for the party to a contract who wishes to invoke Article 1195 of the Civil Code against the other party to make them believe in the case of the existence of a real risk, even if only to negotiate.
The first challenge is to fall within the scope of Article 1195 of the Civil Code, which is narrow and whose conditions of implementation remain subject to discussion even today, due to a lack of enlightening case law.
The second problem stems from the fact that the procedural aspect of the system is sorely lacking.
No judge and/or specific judicial procedure has been provided to implement this provision in a way that would make it effective.
In essence:
- Neither the judge of requests nor the judge of interim measures, who are the judges who can be easily seized and who quickly render a decision, are competent to intervene in this capacity, for a whole host of reasons that are perfectly logical and indisputable;
A recent ruling by the Paris Court of Appeal states this observation:
“On the other hand, while these provisions allow a party to request a renegotiation of the contract from its co-contractor, they do not exempt it from fulfilling its obligations during the renegotiation. If the renegotiation fails, only the trial judge can adapt, revise, or terminate the contract. Consequently, the request exceeds the powers of the summary proceedings judge, and pending a possible referral to the trial judge, the appellant cannot avoid paying the rents contractually owed on the basis of these provisions .
- The trial judge is a judge who makes decisions very rarely and quickly, even in the context of fixed-day or short-term procedures which are supposed to allow for an accelerated resolution of the dispute in case of emergency.
Therefore, what is the relevance of a mechanism like that of Article 1195 of the Civil Code which gives the judge, in the event that a party to a contract encounters serious difficulties in performing it, the power to revise or terminate it, if he cannot do so in a time which takes into account this potentially extremely urgent situation?
Contract law is difficult to separate from procedural law, which aims to guarantee its effectiveness.
Without an effective procedure, the law is not enforced and is therefore a dead letter.
However, simple solutions do exist:
- Establish a dedicated procedure: a simplified method of referral, predetermined procedural deadlines, both short and respectful of the principle of adversarial proceedings, guaranteeing the judge's ability to make a decision quickly to deal with a presumed urgent situation;
- To establish a judicial body or at least specialized courts, as has already been established, for example, for litigation relating to certain unfair commercial practices.
This would also allow for the establishment of conciliators or mediators attached to these jurisdictions and themselves specialized in dealing with these issues where their intervention can be essential.
This incidentally highlights a need for consultation, in the implementation of reforms, with legal practitioners, those who are on the ground and not those in the salons, so that the adopted texts, whose intentions are laudable, can be implemented concretely and immediately.
It's never too late to do it.
Yes of course, this requires real resources to be given to the justice system, and not just for criminal justice, but that is another subject.
