The reform of contract law enshrines consideration of the fact that a contract may have been concluded in an overall operation and be closely linked to other contracts concluded within the framework of this operation, by providing that said contract may be called into question by the disappearance of one of them.
In the extension of case law which had begun to form, the new article 1186 of the Civil Code provides: " when the execution of several contracts is necessary for the performance of the same operation and that one of them disappears , are null and void contracts whose execution is made impossible by this disappearance and those for which the execution of the disappeared contract was a determining condition of the consent of a party .
This provision conditions the lapse thus established on the characterization of a situation whose different components are as follows:
- An operation requiring the performance of several contracts for its execution
The generality of the term of operation used confers on article 1186 of the Civil Code a vocation to apply to an extreme variety of situations, almost unlimited since it involves a plurality of contracts and therefore not necessarily of co-contractors.
The question arises as to how the necessity of the execution of said contracts for the completion of the operation will be assessed judicially.
- The disappearance of one of the contracts necessary to carry out the operation
First of all, the drafting of the article does not seem to make the identity of the parties to the contracts concerned, even partial, a condition for invoking lapse.
This would mean that lapse could be invoked by a party to a contract under the disappearance of another contract from the operation to which neither it nor even its co-contracting party is a party. Furthermore, once again, the use of the term disappearance gives lapse a fairly wide vocation to operate insofar as it is a generic term that could be applied to all the mechanisms that can lead to the annihilation of the contract, such as cancellation, rescission or termination, lapse itself and even the mere occurrence of the term...
It is observed, with regard to the vocation of lapse to characterize itself a disappearance, that the lapse of a contract in a contractual operation could itself be at the origin of another lapse and therefore of a chain reaction which can lead to the lapse of the whole operation, since the other required conditions would be met with respect to each contract concerned.
- A particular link between the contract likely to be considered null and void and the contract that has disappeared, namely either an objective indivisibility between the two contracts (the impossibility of performing the second contract due to the disappearance of the first) or a subjective indivisibility (the questioning of the reason that led one of the co-contractors to the second contract to conclude this one because of the disappearance of the first)
The generalization of the solution that has been applied by case law in certain types of contractual relations now makes it necessary to understand the mechanism established, as its consequences can be significant.
It is indeed neither more nor less than to allow the invocation of lapsing, which purely and simply puts an end to the contract, in hypotheses which had not been imagined until now.
The only obstacle to the invocation of lapse being that the co-contracting party to whom it would be opposed would not have known of the existence of the overall operation when he gave his consent.
It is at this stage anything but obvious that the application of article 1186 of the Civil Code can be prevented contractually, which would only leave the possibility of foreseeing the consequences of lapsing.
It is therefore a new problem of which lawyers must be aware and for the treatment of which they must imagine suitable clauses in the contracts they draw up or review.
Morgan James
