프랑스민법상 불가항력에 의한 이행불능

The new article 1351 of french civil code provides that the obligers can be discharged of their obligations in cases of force majeure. Force majeure is defined by article 1218 as the occurrence of an event which is beyond the control of the obligor, which could not have been reasonably foreseen at the time of the entry into of the contract and the effects of which cannot be avoided by appropriate measures and which prevents performance of its obligation by the obligor. The Articles 1351 and 1351-1 make no mention of the effect of force majeure on the debtor’s right to a promised counter performance, where the debtor’s own performance has been excused by force majeure. While there was no codal provision which specifically covers this problem, the Court of Cassation had approved the application thereto of article 1184 which provides that the resolutory condition is implied in every bilateral contract where on of the parties does not perform his obligation. The new article 1218 has accepted the judicial view. If the effects are definitive, the contract is automatically terminated and the parties are discharged of their obligations (without damages being due). Where an event of force majeure prevents performance of an obligation only partially, termination may be denied, and a proportional diminution allowed in the performance promised in return. If the effects are temporary, the performance of the obligation is suspended unless the delay resulting therefrom justifies termination of the contract.