Major innovations of the 2016 Ordinance
Objective: Identify the 4 major innovations of the 2016 reform that directly impact the drafting and negotiation of your procurement contracts.
The reform of contract law by Ordinance No. 2016-131 introduced several major innovations that every buyer must be aware of.
Article 1112 - Pre-contractual negotiations
Parties are free to enter into and break off negotiations, but must act in good faith. An abrupt termination of advanced negotiations may give rise to liability (fault in negotiations).
Article 1112-1 - Pre-contractual duty of disclosure
A party that knows information of decisive importance for the other party's consent must disclose it. In procurement: a supplier aware of a product defect must disclose it.
Article 1195 - Hardship (Imprévision)
A major innovation: a party may request renegotiation if an unforeseeable change makes performance excessively onerous. Highly relevant for long-term contracts exposed to commodity price volatility.
Article 1218 - Force majeure codified
Force majeure is now defined by the Civil Code: an event beyond the debtor's control, unforeseeable and irresistible. A clear distinction between temporary suspension and permanent termination.