" The paper tiger is the literal translation of the Chinese 'zhǐ lǎohǔ' (紙老虎), denoting a seemingly threatening thing, but in reality harmless " (Wikipedia definition).
The excitement (relative, because it is ultimately only a subject agitating lawyers) caused, at the time of the reform of contract law, by the introduction of the treatment of unforeseeability and the cancellation of the binding force of the contract, is a long way off.
Only those who are not interested in the concrete application of the provisions of article 1195 of the Civil Code , (application which was very predictable) still believe in the usefulness of this provision, which if it can exist, is not not necessarily the one you think.
In summary, for those who do not have the desire or the courage to go to the end of this article, the purpose of which is to draw up an observation and to make suggestions, this provision does not allow you to terminate or easily modify a contract when difficulties are encountered in its execution following a sudden change in the situation which led to its conclusion.
There is therefore no point in having high hopes or undue fears regarding the implementation of this provision.
Why this assimilation to a paper tiger?
Because it is very difficult for the party to a contract who wishes to invoke article 1195 of the Civil Code against the other party to make him believe in this case in the existence of a real risk, even if what to negotiate.
The first test is to succeed in falling within the scope of Article 1195 of the Civil Code, which is narrow and whose conditions of implementation are still subject to discussion today, for lack of enlightening case law.
The second results from the fact that the process component of the device is cruelly lacking.
There is no provision for a judge and/or a specific legal procedure to implement this provision in a way that would make it effective.
Essentially :
- Neither the motions judge nor the summary judge, who are the judges who can be seized easily and who quickly render a decision, are competent to intervene in this respect, for a whole host of reasons which are perfectly logical and indisputable;
A judgment recently handed down by the Paris Court of Appeal states this finding:
“On the other hand, if these provisions allow a party to request a renegotiation of the contract from its co-contracting party, they do not exempt it from the performance of its obligations during the renegotiation. If this fails, only the trial judge can adapt the contract, revise it or terminate it. It follows that the request exceeds the powers of the judge in chambers and that, pending a possible referral to the trial judge, the appellant cannot dispense with the payment of the rents contractually due on the basis of these provisions. .
- The trial judge is a judge who finds it very difficult to render decisions quickly, even within the framework of fixed day or short-term procedures which are nevertheless supposed to allow a resolution of the dispute in an accelerated manner in the event of an emergency.
Therefore, what is the relevance of a device like that of article 1195 of the Civil Code which confers on the judge, in the event that a party to a contract encounters serious difficulties in executing it, revising it or put an end to it, if it cannot do so in a time that takes into account this potentially extremely urgent situation?
Contract law is difficult to separate from procedural law, which is intended to guarantee its effectiveness.
Without an effective procedure, the law is not sanctioned and is therefore a dead letter.
However, there are simple solutions:
- Establish a dedicated procedure: a simplified mode of referral, predetermined procedural deadlines, both short and respectful of the adversarial principle, guaranteeing the judge's vocation to render a decision quickly to deal with a presumed urgent situation;
- Establish a judicial formation or at least specialized jurisdictions as, moreover, it has been possible to establish them, for example, in respect of litigation relating to certain unfair commercial practices.
This would also make it possible to establish conciliators or mediators attached to these jurisdictions and themselves specialized in dealing with these issues where their intervention may be essential.
This incidentally highlights a need for consultation, in the implementation of reforms, with legal practitioners, those who are in the field and not those in the salons, so that the texts adopted, whose intentions that motivate them, are laudable , can be concretely implemented immediately.
It is never too late to do so.
Yes of course, this requires real means given to justice, and not only for criminal justice, but that is another subject.
