Advice on implementing Article 1195 of the Civil Code

Article 1195 of the Civil Code allows, in substance:

• To request a renegotiation of the contract in the event of a change in circumstances that was unforeseeable at the time the contract was concluded, making the performance of its obligations excessively onerous for a party who did not accept the risk
• If the parties cannot reach an agreement, they should refer the matter to a judge to have the contract revised or terminated.

The context of Covid-19 is likely to be one of the first to generate the desire to invoke the provisions in question in such a systematic way.

Implementing this mechanism is not easy for several reasons.

Implementation of Article 1195 of the Civil Code, recommendations:

• First, look at the date the contract was concluded: the mechanism cannot be implemented for contracts concluded before October 1, 2016 (implementation may, however, be discussed in the event of renewal of the contract after this date or tacit renewal, resulting in a new contract)
• Next, verify that the contract in question does not exclude the application of Article 1195 of the Civil Code (considered under current law as supplementary to the parties' wishes) or modify it.
• To characterize how current events (which are not limited to an epidemic but encompass all its consequences, particularly those resulting from decisions made by the executive branch) would affect the financial conditions for providing the service due
• Ensure that adapting the contract is realistic if that is what is intended to be requested of the other party
• Formalize the request to renegotiate the terms of the contract in order to be able to justify it, particularly in the event of legal action, by outlining the circumstances involved and their consequences, so as to demonstrate the existence of the conditions for implementing Article 1195 of the Civil Code
• Outline the terms of the proposed renegotiation to save time in discussions with the other party
• The request for renegotiation should be formalized to include the desired options from the first two paragraphs of Article 1195 of the French Civil Code (simple renegotiation, termination of the contract, joint application to a judge to amend the contract), so that the other party's refusal, whether explicit or implicit after a reasonable period, is comprehensive and allows for a request to be made to the judge to revise or terminate the contract.
• Anticipate referral to the judge by examining the most appropriate judicial procedures in terms of the judge's powers (those of the trial judge seeming more suitable than those of the summary proceedings judge) and time limits (the expedited or fixed-date procedure can be considered in case of emergency)

The aim is, in a potentially critical situation, to ensure that the appropriate and sufficiently rapid route is chosen. Failing that, it is essential to know how to turn to other mechanisms.