Der Wegfall der Geschäftsgrundlage – Altes und Neues zur théorie de l'imprévision in Frankreich (Change of Circumstances – Old and New Elements of the French théorie de l'imprévision)
Rabel Journal of Comparative and International Private Law (RabelsZ), Vol. 76, No. 4, pp. 761-784, October 2012
25 Pages Posted: 31 Oct 2012
Date Written: June 1, 2012
This paper deals with the French théorie de l'imprévision and the context of hardship due to changed circumstances. The famous canal de Craponne case, decided by the Cour de cassation in 1876, continues to define court practice, with significant consequences for contract practice and subsequent court decisions. The position adopted by the Cour de cassation in its landmark decision has had repercussions not only and directly as regards imprévision, but also in the context of bonne foi and cause. The unfortunate results are a lack of both legal certainty and fairness. There is a broad perception that the status quo is unsatisfactory and all three of the competing drafts for the pending modernisation of the French law of obligations propose the adoption of a rule in the Code civil. However, these concepts vary considerably. A comparison of the respective strengths and weaknesses of these drafts concludes with a suggestion to follow the approach advanced by the Chancellerie project.
This article is published in this Research Paper Series as part of the special issue of the Rabel Journal in honour of Reinhard Zimmermann’s 60th birthday with the generous and exceptional permission of the rights owner, Mohr Siebeck. Full-text Rabel Journal articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.
Note: Downloadable document is in German.
Keywords: Change of circumstances, Hardship, Force majeure, Imprévision, Craponne, Geschäftsgrundlage
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