The use of force majeure solely at the service of the party obligated to perform the contract

Cass. civ. 1ère, November 25, 2020, n° 19-21.060 FS-P+B+I

In a noteworthy ruling – which was featured in the bulletin – the first civil chamber of the Court of Cassation, on November 25, 2020, took care to define the contours of force majeure, as provided for in Article 1218 of the Civil Code .

More specifically, it dealt with the issue of its invocability by a creditor who is unable to benefit from a service owed to him.

This decision is of particular importance as it echoes the many debates that took place around the notion of force majeure during the first lockdown , even though the events in question predate the current health crisis.

In this case, a married couple had signed a three-week accommodation contract with a spa chain in September 2017 and paid for their stay upon arrival. Unfortunately, during the first week, one of them was hospitalized in an emergency, which brought their stay to an abrupt end.

The couple subsequently decided to sue the spa chain company for termination of the contract and compensation due to a circumstance constituting force majeure.

By judgment dated May 27, 2019, the district court considered that there was force majeure and confirmed the termination of the contract in favor of the plaintiffs.

The defendant company then decided to file an appeal to the Court of Cassation.

Therefore, the question that the Court of Cassation had to decide was whether the contracting party, finding itself unable to enjoy the service due to it, due to a case of force majeure, is entitled to terminate the contract in order to avoid payment for that same service.

The Court of Cassation very clearly answered in the negative and overturned and annulled the judgment undertaken for violation of article 1218 of the Civil Code .

Thus, " a creditor who has not been able to benefit from the service to which he was entitled cannot obtain the termination of the contract by invoking force majeure ."

The Court of Cassation also clarified that by paying for the stay, the couple had fulfilled their obligation. Therefore, as creditors of the service, they could not invoke force majeure to justify terminating the contract and obtaining a refund of the sums paid.

In fairness, this decision may seem harsh, but it has the merit of bringing more clarity to the concept of force majeure.

Nevertheless, as things stand, it is not excluded that the position of the Court of Cassation could evolve rapidly in the face of the current litigation resulting from the COVID-19 .