Force majeure and statutory warranties

Force majeure - Article 1218 of the French Civil Code

Objective: Identify what does (or does not) constitute force majeure and draft clauses adapted to the post-COVID context.

Legal sources

Art. 1218 C. civ. - Definition of force majeure
Art. 1641-1649 C. civ. - Warranty against hidden defects
Art. 1626 C. civ. - Warranty against eviction

Force majeure releases the debtor from liability when three cumulative conditions are met:

1. External to the debtor

2. Unforeseeable at the time of conclusion

3. Irresistible effects despite precautions

✅ IS force majeure (case law)

Exceptional natural disaster (earthquake, tsunami)
War, international embargo
Pandemic at the outset (COVID-19 early 2020, before it became foreseeable)
Criminal arson destroying the sole factory
Volcanic eruption blocking air traffic (Eyjafjallajökull 2010)
Massive state-level cyber attack (depending on circumstances)

❌ IS NOT force majeure

Rise in commodity prices (= hardship under Art. 1195)
Internal strike within the supplier's company
Supplier's financial difficulties
Subcontractor failure (unless itself caused by force majeure)
Pandemic invoked after 2020 (became foreseeable)
Normal seasonal bad weather
Foreseeable component shortage (e.g., semiconductors post-2021)

If temporary:

→ Suspension of performance

No penalties during the force majeure period

Obligation to resume performance once the impediment ends

If permanent:

→ Automatic termination

Without compensation to either party

Restitution of unperformed services

🔒 Warranty against hidden defects (Art. 1641-1649)

The seller warrants against hidden defects rendering the item unfit for use or substantially diminishing its usefulness. Action must be brought within 2 years of discovery of the defect (Art. 1648).

🛡️ Warranty against eviction (Art. 1626)

The seller warrants peaceful enjoyment of the item and the rights transferred (particularly intellectual property). Critical in software and creative work purchases.

Practical case - Force majeure post-COVID

A supplier invokes "COVID force majeure" in 2022 to justify a semiconductor delivery delay.

❌ Rejected by courts: Since 2021, the semiconductor shortage has become foreseeable - the unforeseeability condition is not met
❌ The pandemic itself is no longer unforeseeable after March 2020
✅ The supplier could, however, invoke hardship (Art. 1195) if costs have become excessively onerous

💡 Post-COVID: Force majeure clauses have been the subject of heightened negotiations since 2020. Plan for: the notification deadline (e.g., 5 business days), mandatory mitigation measures, an indicative list of force majeure events, and the duration threshold beyond which termination becomes possible (e.g., 90 days of suspension).