The paradoxes of the theory of imprévision in the new French law of contract: a judicial deterrent?

As part of the reform of the law of contracts,the theory of imprévision is now enshrined in Article 1195 CC of the French Civil Code. The novelty of this article lies essentially in the new judicial power of review. As this paper shows, Article 1195 CC raises three paradoxes:the first one in the nature of the article itself as a default rule that encourages a voluntary ex-ante contractual solution over a judicial solution through careful pre-emptive drafting;the second at the renegotiation phase as the affected party has the right to request renegotiation whereas the other contracting party the right to refuse to renegotiate; and the third in the new judicial powers that play as a deterrent and favour an ex-post contractual solution through renegotiation. Overall, this article demonstrates a clear bias for a private contractual and negotiated solution (over a judicial one). Small and medium sized businesses are likely to avail themselves of the new framework to redefine their contractual relationship. By contrast, larger commercial enterprises are further incentivised to enhance their self-reliance by boosting forward-looking contractual and expert determination provisions dealing with changed circumstances. The fear of a snowball effect with the provision generating a a more interventionist judicial attitude appears therefore exaggerated