The reform of the law of contracts, obligations and evidence has now entered into force.
It must be apprehended and integrated quickly, having established new principles or rules applicable to contracts concluded since October 1, 2016 and, a priori, to contracts which will be renewed or tacitly renewed from this date.
Major changes have indeed been made:
- The consecration of the obligation to behave in good faith, at all stages of the life of the contract, as well as its public order character;
- The establishment of the qualification of contract of adhesion, whose regime prohibits abusive clauses;
- A broadening of the notion of violence now including the abuse of the state of dependency;
- The general prohibition of clauses depriving the essential obligation of the debtor of their substance;
- The possibility of taking advantage of the lapse of a contract due to the disappearance of another contract concluded by one of the parties, due to their interdependence;
- The creation of a device intended to ultimately allow a party confronted with the occurrence of unforeseeable circumstances during the conclusion of the contract, making its execution excessively onerous, to obtain its judicial review or cancellation;
- The legal definition in terms of the duration of the contract of the concepts of extension, renewal and tacit renewal as well as their regime;
- The option for a party to avail itself of the exception of non-performance in futurum;
- The creation of a new penalty for contractual non-performance, price reduction;
- The consecration of the faculty for a party to avail itself unilaterally of the resolution of the contract, outside the application of any termination clause.
More technical subjects have also given rise to new rules or mechanisms, such as:
- The establishment of interrogation actions;
- The widening of the field of exceptions to the principle according to which silence does not constitute acceptance;
- The treatment of the quality of the service in the contract;
- The creation of a unified regime for assignments of contracts or receivables;
- The option offered to the parties in terms of unilateral fixing of the price in framework contracts or in service provision contracts and its limits.
Some of the new provisions of the Civil Code are also likely to pose difficulties in implementation, such as:
- In terms of representation, with the adoption of a rule strictly governing the conditions for representation of both parties to a contract by the same person;
- In terms of dealing with the termination of the contract, due to the supposed maintenance of the effects of certain clauses such as non-competition or confidentiality clauses.
It is more than ever necessary to take an interest in the revision of the contractual models used as well as to review the contractualization processes, taking into account the fact that the reform carried out carries a spirit which the judges will a priori have the vocation to ensure respect, which highlights the need for the parties to have a relationship based on a balance of their rights and obligations.
