Force Majeure in Commercial Contracts: The Court of Cassation’s Current Case Law

Force majeure clauses in commercial contracts are critical provisions that limit the parties’ liability when events beyond their control occur. Recent Court of Cassation decisions have set out important principles for how those clauses are construed.

Elements of force majeure

Under Court of Cassation case law, force majeure requires all of the following: (1) the event could not have been foreseen by the parties, (2) it could not reasonably have been resisted, (3) it actually prevents performance of the obligation, and (4) the party relying on it is without fault.

Leading 2024 decisions

In a 2024 judgment of the 11th Civil Chamber of the Court of Cassation, supply-chain disruption alone was held not to constitute force majeure, but could acquire that character when combined with statutory export bans. That approach clarifies the standard that will apply, in particular, to international sale-of-goods contracts.

Practical recommendations

Draft force majeure clauses with care: prefer a general definition plus illustrative examples rather than an exhaustive list of unforeseen events. State clearly the notice obligation and its deadline, and the conditions on which the contract may terminate.