Given the current situation, there is room to consider whether the Covid-19 pandemic can be considered as force majeure and as such justify breach of contract performance.

Article 1218 of the French Civil Code states that « In contractual matters, there is force majeure where an event beyond the control of the debtor, which could not reasonably have been foreseen at the time of the conclusion of the contract and whose effects could not be avoided by appropriate measures, prevents performance of his obligation by the debtor ». Force majeure is thus characterised both by the unforeseeability of the event invoked by the debtor of the contractual obligation and by the irresistible character of the effects caused by this event. 

The judges have discretion to appreciate, on a case by case basis, whether an event can be characterised as force majeure. Jurisprudential decisions relating to other epidemics have not been favourable to the qualification of these as force majeure events  (CA of Basse-Terre, 17 December 2018, n°17/00739 on chikungunya ; CA of Nancy, 22 November 2010, n°09/00003 on dengue), which lets us think by analogy that the  Covid-19 should not be characterised as force majeure. 

However, the first decisions handed in the context of the Covid-19 upheld the qualification of force majeure (CA of Colmar, 16 March 2020, n°20/01142 ; CA of Bordeaux, 19 March 2020, n°20/01424 ; CA of Colmar, 23 March 2020, n°20/01207 ; CA of Douai, 26 April 2020, n°20/00638 ; CA of Douai, 5 May 2020, n°20/00660).  Exercising their discretion, the judges were keen on the « irresistible » effects provoked by the Covid-19 epidemic (lockdown, interdiction to work and travel, borders shutdown…) considering that they could not be avoided by appropriate measures. In particular, the judges have noted that the situation of force majeure resulted of the « brutal outbreak of a deadly epidemic preventing any travel without risk for the person » (CA of Douai, 26 April 2020, n°20/00638).  

Nevertheless, it should be pointed out these decisions do not concern contractual relationships. There remains uncertainty as to their applicability to contractual matter. 

Given this uncertainty and the absence of a clear position of the case law on this question, it is essential to take particular care in the redaction of contracts, whether national or international, by setting conventionally the frame of force majeure and the faculty of termination of the contract by each party.