On 24 September 2026, Hervé Guyader led a workshop at the 34th national congress of the ACE, the French association of business lawyers, held at the Palais des congrès of La Grande-Motte under the theme “Reinventing performance: the lawyer at the heart of value creation”. The workshop was devoted to unforeseen circumstances and imprecision in contracts (“L’imprévision, l’imprécision en matière contractuelle”). His contribution covered hardship in international law from three angles: private international law, international trade law and maritime law.
The common thread was simple. In a purely domestic French contract, a lawyer looking for a remedy when the economics of the deal collapse turns to Article 1195 of the Civil Code. In an international contract, that is not the first question. The first question is which law governs the contract, and whether that law recognises hardship at all.
Private international law: the governing law decides everything
The Rome I Regulation lets the parties choose the law of their contract (Article 3) and, failing a choice, generally points to the law of the seller’s or service provider’s habitual residence (Article 4). Article 1195 of the French Civil Code therefore applies only where French law governs. That provision, introduced by the ordinance of 10 February 2016 and limited to contracts concluded on or after 1 October 2016, is not mandatory: a clause may exclude it, and many commercial contracts do. Nor is it an overriding mandatory provision within the meaning of Article 9 of the Regulation, so a French court will not impose it on a contract governed by a foreign law.
Foreign laws differ sharply. English law has no doctrine of hardship and releases a party only through frustration, which is construed very narrowly; German law allows the contract to be adapted where its basis has fallen away (section 313 BGB); other civil law systems have comparable mechanisms. Choosing the governing law is thus already choosing what happens to the contract in a crisis, long before any crisis arrives.
International trade law: the CISG and the clause
For international sales of goods, the Vienna Convention applies automatically between parties based in contracting states unless expressly excluded. Its Article 79 excuses a party for an impediment beyond its control that it could not reasonably have taken into account or overcome; it provides for neither renegotiation nor adaptation. In Scafom (19 June 2009), the Belgian Court of Cassation nonetheless held that a serious disruption of the contractual balance could give rise to a duty to renegotiate, filling the gap in the Convention with the general principles of international trade. The decision remains isolated and is no basis for a strategy.
The real answer lies in the contract. The UNIDROIT Principles recognise hardship (Articles 6.2.1 to 6.2.3), and in March 2020 the International Chamber of Commerce published model force majeure and hardship clauses that parties can incorporate by reference. A precise clause is worth more than an uncertain statute: it states what triggers the duty to renegotiate, within what time, and what follows if no agreement is reached, whether adaptation by a third party or termination.
Maritime law: little room for hardship
Charterparties are very often governed by English law and London arbitration. Hardship is therefore almost absent, and frustration succeeds only exceptionally: after the closure of the Suez Canal in 1956, the House of Lords held that the longer voyage round the Cape of Good Hope did not discharge the seller (Tsakiroglou v Noblee Thorl, 1962). The Red Sea crisis raised the same question in the same terms: rerouting is expensive, but it does not make performance impossible.
The industry has therefore allocated the risk itself through standard clauses: BIMCO war risks clauses (VOYWAR, CONWARTIME), deviation clauses, the sharing of additional insurance premiums. In the carriage of goods by sea, the applicable international convention governs reasonable deviation. Hardship under Article 1195 has little grip on these contracts; the lawyer’s work lies upstream, in drafting the clauses and choosing the law.
Going further
The workshop drew on material published on this site. The practical guide Managing the Unforeseeable in International Contracts brings together the analysis and model clauses. Force majeure and hardship in international contracts sets out the conditions of Article 1195, the fallback options and the position under the CISG. Force majeure and hardship clauses in an international contract covers clause drafting and the ICC model clause. On the maritime side, Red Sea and maritime deviation examines BIMCO clauses, insurance and documentary credits.
The firm advises companies on drafting and renegotiating their international contracts; its other areas of practice are presented on the international trade law page.