Bull. Civ. 1998.I, no. 53, p.34
Case SA Saint-Louis Union Académie v. Mme Bonjour

Given that Mme Bonjour, having signed up for a full-time two-year course at the École Saint-Louis leading to a Certificate of Professional Competence in hairdressing at a cost of 32,000 francs, then informed the school that for reasons of ill-health she could not proceed with the course, and stopped paying the tuition; that when the School sued her for the unpaid balance its claim was dismissed by the judgment under attack (Paris, 14 December 1995), as itwas at first instance;

Given that the School’s first complaint is that the judgment below violated articles 1147 and 1148 Code civil in releasing Mme Bonjour from her obligation when her illness could not be considered as an instance of force majeure sinceit was not an event external to her nor did it prevent her paying the price;

But given that the court found that Mme Bonjour’s ill-health prevented her from attending the classes given by the School it was right for it to treat this illness, which was irresistible, as an instance of force majeure, evenif it was not external to her; so that this complaint is not well-founded;

Secondly, given that as regards the clause in the contract whereby “the contract becomes definitive on signature, and the full amount becomes payable, with no possibility of avoidance for whatever reason” the judgment is criticised for declaring it abusive without inquiring what actual loss the School might suffer from the withdrawal of a student in the absence of such a clause and whether the School, as professional, thereby obtained an excessive advantage, and so for rendering a decision without legal basis in the light of article L. 132-1 Code de la consommation;
But given that in its appeal the School did not raise the point that the withdrawal of a student during the year might cause it any actual loss in the absence of this clause, the court of appeal was not bound to make unrequested inquiries; that the court of appeal’s decision was justified in holding that the clause was excessively advantageous to the School on the simple ground that the student had to pay the tuition even if the reason for the non-performance of the contract was the fault of the School or resulted from an event constituting force majeure or cas fortuit, this being in line with the recommendation ofthe Commission des clauses abusives no. 91-09 of 7 July 1989.

For these reasons DISMISSES the application for review.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2005.

Civ 1, 10 February 1998, Bull no 53 : This case law is already long-standing (CA Paris, 7 January 1910, op cit). Commenting on this judgment, Gilles Paisant (JCP 1998, II no 10124) notes that, according to the traditional principles governing force majeure (irresistibility, unforeseeability and externality), "the illness of the other contracting party, unless it is external to him, should never constitute an event of such a kind as to excuse non-performance (...). But application of these principles without any nuances would risk leading to a number of situations which would be inequitable if not absurd (....). This is why the case law, refusing to retreat into a position of principle, has considered that, according to the circumstances of the case, the exoneratory power of force majeure could benefit the debtor stricken with illness". This judgment "therefore comes perfectly within the movement in case law which abandons the criteria of externality so as to exempt, in such a case, the debtor who is ill from the consequences of his non-performance". It is even possible (depending on the author) to question whether it "did not intend further to relax the conditions for acceptance of force majeure in these circumstances of illness by admitting its only characteristic to be 'irresistibility'", an analysis confirmed by a judgment of the first civil chamber of the 6 November 2002 (Bull no 258), given in a similar kind of case, which accepts that "the characteristic of force majeure is only the irresistibility of the event".

Translation by Raymond Youngs

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