The use of force majeure at the sole service of the debtor of the performance of the contract

Cas. civil. 1st, November 25, 2020, n° 19-21.060 FS-P+B+I

By a remarkable judgment – ​​which had the honors of the bulletin – the first civil chamber of the Court of Cassation, on November 25, 2020, took care to define the contours of force majeure, provided for in article 1218 of the Civil Code .

More specifically, it dealt with the question of its being enforceable by a creditor placed in the impossibility of benefiting from a benefit due to him.

This decision is of particular importance in that it echoes in particular the numerous debates which took place around the notion of force majeure during the first confinement , even though the facts in question predate the current health crisis.

In this case, the spouses had subscribed, in September 2017, to an accommodation contract with a thermal chain company for a period of three weeks and had paid the price of the stay upon their arrival. Unfortunately, from the first week, one of the spouses was hospitalized in emergency, which put an end to their stay.

The spouses subsequently decided to sue the thermal chain company for rescission of the contract and compensation due to a circumstance having the character of force majeure.

By judgment dated May 27, 2019, the district court found that there was force majeure and confirmed the termination of the contract for the benefit of the plaintiffs.

The defendant company then decided to lodge an appeal in cassation.

Therefore, the question that had to be decided by the Court of Cassation was whether the contracting party, finding it impossible to enjoy the service due to him, due to a case of force majeure, is entitled to resolve the contract in order to avoid payment for this same service.

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

Thus, " the creditor who was unable 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 specified that by paying the price of the stay, the spouses had fulfilled their obligation. In this sense, being creditors of the service, they could not therefore use the concept of force majeure to justify the termination of the contract and obtain reimbursement of the sums paid.

In fairness, this decision may seem severe but nevertheless has the merit of bringing more clarity to the notion of force majeure.

Nevertheless, as it stands, it is not excluded that the position of the Court of Cassation could change rapidly in the face of the current litigation resulting from the epidemic linked to COVID-19 .