Force majeure rarely stands alone in an international sale. The allocation of risk under the Incoterm is examined on our page on Incoterms and international sales. When the clause fails and the dispute must be decided, see international arbitration and international commercial litigation.
Practical guide: force majeure, hardship and sanctions in international contracts
A partner is under sanctions, a 25% customs duty appeared overnight, a shipping route is closed: the unforeseeable no longer surprises anyone in international trade, but legal reflexes often remain poorly calibrated. An additional cost, however enormous, is never a case of force majeure, and writing so by mistake in a letter hands the other side an admission it never hoped for. Here are the six points to master before acting.
1. Force majeure: three conditions, and two traps that catch everyone
Article 1218 of the French Civil Code requires an event beyond the debtor’s control, unforeseeable at the conclusion of the contract and whose effects could not be avoided by appropriate measures. First trap, and a decisive one: force majeure can never be invoked to avoid paying a sum of money, as the Cour de cassation constantly recalls (Cass. com., 16 September 2014, No 13-20.306; confirmed by Cass. civ. 3e, 15 June 2023, No 21-10.119). A cash shortfall never excuses a debtor. Second trap: a party that is itself sanctioned cannot invoke its own designation as force majeure, for want of externality, as the Cour de cassation held in Bank Sepah (Cass. ass. plén., 10 July 2020, Nos 18-18.542 and 18-21.814). In a contract exposed to sanctions, the classic force majeure clause therefore does not protect the party likely to be designated: only a dedicated sanctions clause does. Without that clause, the sanction applies all the same.
2. Article 1195: the most powerful weapon, but closed in many cases
Article 1195 of the Civil Code allows the party for whom performance has become “excessively onerous” to request renegotiation of the contract and, failing agreement, its revision or termination by the court. That option has strict limits, however: it applies only to contracts concluded on or after 1 October 2016, it is excluded for transactions in securities and financial instruments, and above all it is a default rule; a clause expressly excluding it is perfectly valid. A 2024 judgment clarified that the court must concretely examine the accounting records and invoices produced before finding that performance is excessively onerous (Cass. com., 26 June 2024, No 23-12.586).
3. When Article 1195 is closed, four fallback routes
Where the contract excludes Article 1195 or predates it, four levers remain available. Contractual good faith (Article 1104 of the Civil Code, a public policy provision) prohibits a partner from bluntly refusing any discussion; three judgments ground this route: Huard (Cass. com., 3 November 1992, No 90-18.547), Chevassus-Marche (Cass. com., 24 November 1998, No 96-18.357) and Cass. civ. 1re, 16 March 2004, No 01-15.804, it being understood that it secures a discussion, not a guaranteed outcome. The grace period (Article 1343-5) allows the court to spread debts over two years and reduce interest; it is the natural remedy for the party that can no longer pay, precisely the situation force majeure never protects. Significant imbalance (Article L. 442-1, I, 2° of the Commercial Code) punishes imposing on a partner obligations creating a significant imbalance, with heavy sanctions (nullity of the clause, damages), subject to a judgment of 13 May 2026 that closed access to Article 1171 for commercial relationships (Cass. com., No 24-17.137).
4. Comparative law: hardship is anything but universal
Choosing a foreign law that ignores hardship is perfectly effective: Article 1195 is neither an overriding mandatory provision nor a rule of international public policy. The international landscape is uneven. Belgium has recognised hardship since 1 January 2023 (Article 5.74 of the Civil Code); the Netherlands offers the most direct regime in Europe, with no mandatory prior renegotiation (Article 6:258); Italy opens only an action for termination, not revision, and only the defendant may propose a rebalancing (Article 1467); China allows renegotiation under its 2021 Civil Code (Article 533); Egypt, the United Arab Emirates, Qatar and Saudi Arabia all have a judicial revision mechanism, often of public policy and therefore impossible to exclude by contract; Russia has a provision (Article 451) that its courts apply with extreme parsimony; Quebec, finally, simply ignores hardship. Three countries, three answers, no obvious rule.
| Country | Basis | Scope |
|---|---|---|
| France | Article 1195 Civil Code | Revision or termination by the court; exclusion clause valid |
| Belgium | Article 5.74 Civil Code | Renegotiation, in force since 2023 |
| Netherlands | Article 6:258 Civil Code | No mandatory prior renegotiation |
| Italy | Article 1467 Civil Code | Termination only; rebalancing proposed by the defendant |
| Egypt / UAE / Qatar / Saudi Arabia | Own provisions, often public policy | Judicial revision, in principle cannot be excluded |
| Quebec | None | Hardship unknown to the Civil Code |
5. Under the CISG, hardship is only a shield, never a sword
The Vienna Convention on Contracts for the International Sale of Goods applies automatically to most sales contracts between professionals from different countries. Its Article 79 excuses the party that proves the failure to perform was due to an impediment beyond its control, but the reference doctrinal body settled the point in 2020: hardship does fall within the Convention, yet it gives no right to renegotiation and no judicial power to revise the price; under the CISG, hardship is a defence, never a weapon. Article 6 of the Convention nonetheless allows derogation by an express hardship clause, on the model of those published by the International Chamber of Commerce since March 2020, which define the triggering event (Article 6.2.2) and organise the renegotiation procedure (Article 6.2.3).
6. International sanctions: Article 11 of the Blocking Regulation, the most underused defence
Faced with a Russian counterparty affected by sanctions, Article 11 of the EU Blocking Regulation prohibits satisfying any claim made by a Russian entity or by anyone acting on its behalf, a statutory immunity from performance for the European operator which, unlike force majeure, requires proof of neither unforeseeability nor irresistibility. Conversely, an obligation now weighs on European operators: since 2024, the so-called “No Russia” clause (Article 12g) must be inserted in contracts with third-country operators, on pain of criminal penalty. Beware, finally, of the reverse trap: the Blocking Regulation also prohibits compliance with certain US sanctions with extraterritorial effect, hence the value of drafting asymmetric sanctions clauses, which trigger performance for UN, European and national sanctions but not for the listed extraterritorial sanctions, save express authorisation from the Commission.
The complete guide, with model clauses and practical checks
The firm has prepared a practical guide detailing the ten checks of a robust force majeure clause, the International Chamber of Commerce model clauses, the country-by-country treatment of hardship in the main jurisdictions of international trade, and the drafting of asymmetric sanctions clauses. It is available as a free download in exchange for a professional email address:
Download the guide “Managing the unforeseeable in international contracts”
For assistance with an international trade transaction or dispute, see our page on international trade law and, on this specific topic, our page on international contracts.
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