You sign a contract with a supplier. Three months later, raw material prices soar, delivery is delayed, and your partner refuses to renegotiate. What can you do, legally speaking? The answer directly depends on the legal effects of the contract you entered into, that is to say, the obligations, rights, and remedies it generates for each party.
Unforeseeability and renegotiation: what the 2016 reform changed for B2B contracts
Before Ordinance No. 2016-131 of February 10, 2016, French law did not provide any mechanism to reopen a contract that had become unbalanced due to an unforeseen event. Businesses were bound regardless of the circumstances.
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Article 1195 of the Civil Code introduced the notion of unforeseeability in commercial contracts. Specifically, if a change in unforeseen circumstances makes performance excessively burdensome for one party, that party can request renegotiation from its contracting partner.
In case of refusal or failure of the negotiation, the judge can revise the contract or terminate it under the conditions he sets. This is a major change: to understand the legal effects of the contract, this possibility of judicial challenge must now be integrated.
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Let’s take a telling example. A subcontractor signs a fixed-price contract for two years. Six months later, the cost of steel rises massively and unpredictably. Before 2016, this subcontractor would have had to perform at a loss. Since the reform, he can invoke Article 1195 to request a price adjustment, provided that the contract does not expressly exclude this mechanism.
Check if your contracts contain a clause excluding unforeseeability. Many B2B contracts drafted after 2016 include such a clause, which neutralizes legal protection. This exclusion is lawful, but it must be negotiated with full awareness.
Good faith obligation: a concrete lever in contractual disputes
Good faith is not just a simple moral principle. Since the reform, Article 1104 of the Civil Code makes it a legal obligation that applies at all stages of the contract: negotiation, formation, execution.
Have you ever noticed that a business partner is deliberately dragging their feet to fulfill their obligations, hoping that you will concede on another point? This behavior can now be sanctioned on the grounds of contractual bad faith.
Bad faith in negotiation and abrupt termination
Article 1112 of the Civil Code governs the pre-contractual phase. Abruptly terminating advanced negotiations without legitimate reason engages the liability of the at-fault party. In practice, this often concerns private tenders where a candidate invests significant resources before the client withdraws without explanation.
The sanction takes the form of damages. The judge assesses the harm suffered, including incurred costs and the lost opportunity to conclude the contract.
Opportunistic performance
A contracting party that adheres to the letter of the contract while betraying its spirit is also exposed to sanctions. For example, a franchisor who opens a competing outlet in immediate proximity to their franchisee, without an explicit territorial clause, may be accused of bad faith performance.
Significant imbalance clauses: protecting the weaker party in a commercial contract
Article L.442-1 of the Commercial Code penalizes the act of subjecting a business partner to obligations that create a significant imbalance in the rights and obligations of the parties. This mechanism applies between professionals, distinguishing it from protections reserved for consumers.
The significant imbalance is not measured clause by clause, but in light of the overall economy of the contract. Here are the situations that most often trigger this control:
- Very high late penalties imposed on the supplier, without a symmetrical penalty in case of late payment by the client
- A unilateral termination clause benefiting only one party, without notice or compensation
- Price revision conditions at the exclusive discretion of the buyer, without objective indexing criteria
- An excessively disproportionate post-contractual non-competition obligation compared to the duration of the contract
The Court of Cassation has gradually clarified the contours of this notion. The judge examines the absence of reciprocity, the respective bargaining power of the parties, and the real possibility of discussing the clauses before signing.
Drafting contractual clauses: three points to check before signing
Legal theory only protects if the contract is well drafted. Too many companies sign standardized documents without verifying their adequacy with the economic reality of the partnership.
Force majeure clause and unforeseeability clause
These two clauses address different situations. Force majeure (Article 1218 of the Civil Code) involves an external, unforeseen, and irresistible event that completely prevents performance. Unforeseeability concerns an event that makes performance excessively costly, without rendering it impossible. Confusing the two exposes one to a gap in contractual protection.
Termination clause and notice
A termination clause without reasonable notice can be requalified as an abrupt termination of the commercial relationship (Article L.442-1 of the Commercial Code). The notice must be proportional to the duration of the relationship and the volume of business concerned.
Price revision clause
Since the disruptions related to the health crisis and inflation, indexing clauses based on public indices (raw material prices, sector indices) have become widespread in B2B contracts. A fixed-price contract over several years without a revision clause is a major risk for both the supplier and the buyer.
The strength of a contract is not measured by its length, but by the precision of its clauses on foreseeable friction points. A commercial agreement of a few pages, with clear mechanisms for renegotiation, termination, and dispute management, offers better protection than a fifty-page document filled with vague formulations. Each clause deserves to be read as if it were going to be invoked before a judge, because that is exactly what happens when the relationship deteriorates.