What is the relationship between Covid-19 and obsolescence?
| The lapse |
General purpose: the annulment of the contract which results solely from the disappearance of one of its essential elements.
Special case: the lapse of a contract may result from the "disappearance" of another contract when their execution is necessary for the completion of the same operation and that:
– Either its execution is rendered impossible by this disappearance
– Either the performance of the void contract was a determining condition of one of the parties' consent to the remaining contract
| Covid-19 |
– Resolution due to the occurrence of a force majeure event
– Termination of the contract within the framework of the application of Article 1195 of the Civil Code (by mutual agreement or by decision of the judge)
– Resolution due to the other party's shortcomings
This may therefore render other contracts concluded for the purposes of the same operation null and void
What are the effects of lapse?
| Automatic cancellation of the contract |
The lapse of the contract is intended to result solely from the disappearance of the essential element or the contract
– It terminates the contract – The party against whom it is opposed cannot prevent it
– Only the agreement of both parties to the contract to compensate for the disappearance of the essential element or of the other contract can prevent it
| The restitutions |
– The lapse of the contract may lead to restitution between the parties if the contract had begun to be performed and if such restitution is justified
– The rules governing these restitutions, which vary according to their purpose, are further defined by the Civil Code
What behavior should we adopt?
| For the party that wants to invoke the lapse fdfdfdfd |
– Ensure that the contract does not contain any provisions that deal with the consequences of lapse (compensation, special rules for restitution, etc.)
– Notify the other party of the lapse of the contract by specifying the conditions of its implementation (including the fact that the party against whom it is opposed was aware of the overall operation at the time the contract was concluded)
– If necessary, have it legally documented
| For the party that wants to anticipate the invocation of lapse |
– To identify situations involving comprehensive operations within which contracts it has entered into would fall
– Negotiate the possible continuation of the contract which may have lapsed (through the other party's waiver of the right to invoke the lapse due to the disappearance of another contract)
– To understand what restitution may be required
– Analyze the cause of the lapse to see if it stems from a wrongful act by the other party or a third party, which would allow for a claim for compensation for the resulting damages
