About 'changed circumstances', 'imprévision' and 'commercial impractibility' in the light of the new art. 1195 of the French civil code

Abstract

The French civil code established in 1804 (also known as Code Napoleon) promoted the autonomy of the parties and minimal intervention of the judge in the performance of contractual obligations. This approach was transposed into article 1134 (new articles 1103 and 1104 after the 2016 reform) stating that agreements legally entered into operate as law for those who engaged in them and they must be performed in good faith. This principle known as pacta sunt servanda was generally recognized by the Roman law and by old religious writings such as the Old Testament and the Qur’an , and is considered a guarantee that the parties are bound by their agreements thus ensuring the legal security of transactions. However in time its strict application proved unreasonable and during the 12th and 13th centuries the canonists and the ecclesiastical courts formulated the exception of clausula rebus sic stantibus, meaning that contracts must be performed as they were agreed as long as the conditions considered by the parties at the time of the agreement remain unchanged. This exception was initially applied in cases of usury and its use was subsequently extended by courts, becoming widely accepted by the 18th century. Seen as an "escape clause" allowing an exception to the general rule of the sanctity of contracts and thus inconsistent with the predominant philosophical theory of liberalism and the concept of laissez faire, laissez passer, dominant in the 18th century, clausula rebus sic stantibus was abandoned and pacta sunt servanda became instead a general principle of the French civil code.

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