Case:
GP 1926. 1. 68 Case Delphin et Société des Docks de Plombières v. Lugagne
Date:
17 November 1925
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

The Court:

In view of article 1148 Code civil;

Given that force majeure covers events which make it really impossible to perform an obligation, not those which merely render it more onerous;

Given that on 5 January 1920 Lugagne and de Bouillanne undertook by fixed-price contract to execute various works of construction in Marseille for Delphin, whose rights now vest in Docks de Plombières, that they sought an increase in the agreed price because a collective agreement dated 14 March 1920 required them pay enhanced wages to their workmen, and that the decision under attack accepted their demand on the basis that at the time of contracting they could not have foreseen so great an increase in wages, which had a serious enough effect on the bargain to constitute force majeure;

But given that the increase in question did not make it impossible to do the work even if it made it more costly, and therefore did not constitute force majeure;

For these reasons, QUASHES the decision below.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2004.

Civ 17 November 1925: "Force majeure covers events which make performance of an obligation impossible, but not those which merely make it more onerous. Thus, an entrepreneur who has undertaken to carry out construction work for contract prices cannot reclaim increased charges above the prices agreed due to increase in salaries arising from the application of a collective agreement occurring since". Case law maintained.

Case law refuses to assimilate unforeseeable events merely making performance of an obligation more onerous to events which make performance of an agreed obligation impossible, a solution which had already been put forward by the Cour de cassation (Chambre des requetes, 15 February 1859, 12 June 1901, 6 June 1932 and civil chamber, 4 August 1915 and 5 December 1927: increase in customs duties can only constitute a hindrance to performance of a contract, but does not make this performance impossible). See, more recently, Com 12 November 1969: strike by a ship's crew does not constitute force majeure for the shipping company, exonerating it from its obligations arising from a charterparty, as the company could resort to transport by air. On the same classification of concepts, war is an event amounting to force majeure if it makes the performance of the obligation impossible (Com 7 November 1955, Bull no 305, Soc 24 June 1965, Bull no 492), but it is not when it merely makes performance more difficult (Cass civ 4 August 1915 mentioned above). The most recent judgments which reaffirm this solution emanate from the social chamber: cf 28 April 1986 (Bull no 179) and 20 February 1996, Bull no 59 ("Financial difficulties, or difficulties in the functioning of an enterprise cannot by themselves amount to force majeure").

Translation by Mr Raymond Youngs

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