Force majeure and hardship: adapting contracts after Covid

Why rewrite your clauses now

Health crises, geopolitical tensions, supply disruptions and soaring energy prices: post-Covid volatility is no longer exceptional. French law provides two ways to address these uncertainties: force majeure (Article 1218 of the Civil Code) and hardship (imprévision) (Article 1195). Well-drafted clauses reduce disputes and protect your margins.

Without clear clauses, the judge independently assesses how the legislation applies, increasing litigation uncertainty. This makes it important to adapt your contract templates and terms of sale now.

Force majeure: principles, effects and post-Covid drafting

Legal framework (Article 1218 C. civ.)

Force majeure requires an external, unforeseeable and irresistible event preventing performance; in principle, it results in suspension of obligations and, if the impediment persists, termination without fault. Reference: Article 1218 of the Civil Code and an overview of the regime in Title III: Légifrance.

Practical points to watch:

• Impossibility of performance: force majeure concerns impossibility, not mere difficulty. In principle, increased costs alone are not force majeure.
• Payment obligations: a debtor owing money cannot rely on force majeure for exemption, except where payment is legally impossible because of a prohibition.
• Diligence: reasonable efforts to perform despite the event must be demonstrated.

Post-Covid events to name expressly

Avoid vague lists. Include, without limitation, events that are specific and capable of being documented: epidemics/pandemics, administrative measures (closures, restrictions, embargoes), conflicts and sanctions, large-scale cyberattacks, natural disasters, widespread critical-infrastructure outages, supply crises or major logistics disruptions. The Commission d’examen des pratiques commerciales recommends balanced, operational B2B drafting (CEPC, Opinion 19‑9).

Good practices for a force majeure clause

• A definition aligned with the three legal criteria, followed by a list of examples including pandemics and decisions by authorities.
• Procedure: notification within a specified period (e.g. 5 working days), information and supporting documents, continuity plan.
• Mitigation measures: duty to deploy reasonable alternatives (alternative sourcing, remote services, approved subcontracting).
• Effects: time-limited suspension, exemption from penalties/SLA obligations during the impediment, then partial or total termination if the event exceeds a threshold (e.g. 60 days).
• Interaction with prices: specify that force majeure does not per se authorise a unilateral price increase.

Beware of significant imbalances: excessively one-sided clauses may be penalised in B2B and B2C dealings (see DGCCRF and recommendations from the CEPC).

Hardship: organise renegotiation instead of termination

Legal framework (Article 1195 C. civ.)

If an unforeseeable change in circumstances makes performance excessively onerous for a party that did not accept the risk, that party may request renegotiation. If it fails, the parties may agree to terminate or apply to the court to adapt or end the contract on the date and terms it sets (Article 1195 of the Civil Code).

The clause may modify (or even exclude) Article 1195, but a general exclusion in non-negotiated terms of sale may be challenged on contractual-balance grounds (see European Commission – B2B fairness and DGCCRF).

Typical hardship procedure

• Objective triggers: sustained movement > X% in an index (energy, raw materials, freight), substantial regulatory change, interruption of a critical supply chain.
• Reasoned notification and supporting documents, negotiation period (e.g. 30 days), duty to continue provisional performance.
• Tools: mediation/conciliation, independent expert to establish the data framework.
• Outcome: adjustment (price, deadlines, volumes) documented by amendment, or agreed termination; failing that, court jurisdiction to adapt/terminate (art. 1195).

In practice during 2024–2026 (inflation, logistics pressures, energy volatility; see macroeconomic analyses from the Direction générale du Trésor), well-structured hardship provisions have helped avoid abrupt terminations.

Coordinate force majeure, hardship and economic mechanisms

Indexation and price reviews

• Provide for indexation against public indices (INSEE, energy, transport) with a floor/cap and neutralisation of cumulative effects.
• Add a controlled bilateral review (frequency, thresholds, source data) to absorb shocks before triggering hardship.
• Avoid uncontrolled unilateral increases in your terms of sale: risk of significant imbalance (see commercial contracts and general terms and DGCCRF).

Software publishers should see our dedicated guide to essential SaaS terms of sale clauses to align price reviews, SLAs and force majeure events.

Penalties, SLAs and liability

• Suspend penalties/SLA obligations during proven force majeure, with proportionate resumption.
• Impossibility vs. onerousness: clearly define each mechanism to avoid reclassification.
• Align with the limitation-of-liability clause (exclusions, caps) to avoid internal contradictions.

In distribution networks, map supply risks and provide for volumes/allocations during a crisis: see our distribution agreement guide.

Contract governance and evidence

• Traceability: retain ordinances/orders, carrier notices, supplier emails, incident reports and IT logs.
• Communication: dated notices, negotiation minutes, alternative proposals.
• Signing amendments: formalise adaptations to secure enforceability (see e-commerce and terms of sale rules: service‑public.fr).

Operational checklist (post-Covid)

• Update your force majeure definitions (art. 1218), listing epidemics, administrative decisions, sanctions and critical disruptions.
• Insert/adapt a hardship clause (art. 1195): objective triggers, renegotiation stages, mediation/expert input, outcome.
• Set limits on exclusion/limitation clauses to avoid significant imbalance (CEPC/DGCCRF).
• Review indexation/price review provisions, penalties and SLAs to avoid unjustified unilateral increases.
• Train procurement/sales teams: impossibility (1218) ≠ onerousness (1195); evidence good practices.
• Map your specific risks (energy, semiconductors, data centre, freight) and insert dedicated mechanisms.

Two examples of clause structures (to adapt)

Example – Force majeure

Force Majeure, within the meaning of Article 1218 of the Civil Code, means any external, unforeseeable and irresistible event preventing performance of the obligations of the Party invoking it. This includes in particular: pandemics/epidemics, decisions of authorities (closures, embargoes, requisitions), conflicts and international sanctions, natural disasters, widespread critical-infrastructure outages, large-scale cyberattacks and major supply disruptions.
The affected Party notifies the other Party within 5 working days, provides all useful evidence and implements reasonable mitigation measures. Affected obligations are suspended for the duration of Force Majeure, without penalties. If the impediment exceeds 60 days, either Party may terminate the affected service(s) by registered letter with acknowledgment of receipt, without compensation.

Example – Hardship (imprévision)

Where a change in circumstances unforeseeable when the Contract was concluded makes performance excessively onerous for a Party that did not accept the risk (art. 1195 C. civ.), the affected Party may request renegotiation in writing. The Parties meet within 10 days, negotiate for a period of 30 days and continue provisional performance. They may use mediation or an independent expert. In the absence of agreement, the Parties may agree to amicable termination; failing that, the first Party to act may apply to the court to adapt the Contract or end it on terms set by the court.

Points to watch in terms of sale and consumer contracts

• In B2C contracts, prohibit clauses creating a significant imbalance or ambiguity about consumer rights (see DGCCRF).
• In B2B dealings, ensure transparent terms of sale: subject matter, price, review arrangements, deadlines, penalties, clearly defined force majeure/hardship (service-public.fr – Commercial contracts).

What to do in a deadlock

Activate the contractual procedure (notification, discussions, mediation/conciliation). Document each stage and, if necessary, secure the exit through controlled termination of the commercial contract. To facilitate agreement, prioritise mediation or conciliation, which is quicker and less expensive.

To map effects on other clauses (penalties, caps, exclusions), review your liability limitations and, for SaaS/software, your technical terms of sale. Upstream/downstream networks are also affected: consult our distribution guide.

Useful legislation and resources: C. civ., art. 1218 ; C. civ., art. 1195 ; CEPC 19‑9 ; DGCCRF ; e-commerce and terms of sale ; European Commission – B2B fairness.