Expert Guide on Force Majeure and Unforeseen Circumstances in the Context of Global Trade War in France

Force majeure occurs when an event beyond the control of a party, which could not reasonably have been foreseen at the time the contract was concluded, and whose effects cannot be avoided through appropriate measures, prevents such party from fulfilling its obligations. If the impediment is temporary, the performance of the obligation is suspended, if the impediment is permanent, the contract is automatically terminated, and the parties are released from their obligations (Article 1218 of the French Civil Code).

In order to qualify as a force majeure event, the imposition of import tariffs must be external, unpredictable and irresistible - three cumulative conditions stemming from the above definition:

1. External - the event is beyond the control of the party
   
   Since the imposition of import tariffs is an act of government, private economic operators cannot have control over it. As a result, the condition of externality is usually met.
    
2. Unpredictable - the event could not have been reasonably foreseen at the time of contract conclusion
   
   An event can be considered unpredictable at the time of the conclusion of a contract if such event occurs suddenly and unexpectedly, with no reasonable possibility of anticipating it at that time. The unpredictable nature at the time of the conclusion of the contract is assessed according to the circumstances of the case and is subject to the discretionary assessment of the court. A sudden and drastic increase in customs duties can potentially be described as unpredictable, especially if it results from unexpected political decisions and does not stem from an economic context which could have been anticipated. However, in the case of known precedents or a tense international context suggesting such an increase, the unpredictability could be challenged. The French Supreme Court (Court de Cassation) has previously ruled that the import ban decided by customs can be qualified as force majeure if it is unforeseeable for an importer (Cass. com. 1-10-1991 n° 1157 D; Cass. com. 20-6-1995, n° 1303 D, Sté Gam Digit c/ Sté Giedam électronique). Accordingly, it would be relevant to investigate when the imposition of import tariffs became a sufficiently known information before the actual imposition, and thus a predictable event for economic operators.
   
   In the current context (April 2025), the strong and open advocacy of U.S. President for the increase of import tariffs began as early as 2016, countlessly reiterated during his 2024 presidential campaign. A court would assess when the imposition of import tariffs became a foreseeable and plausible event in this timeline. Solutions might diverge depending on when the contract at stake was concluded. The unpredictable character of such event will therefore depend on the circumstances of the case.
    
3. Irresistible - the event is unavoidable and prevents the party from performing its obligations.
   
   The French Supreme Court addressed this issue in a 1927 decision, ruling that an increase in tariffs constitute a difficulty in contract performance, but does not make it impossible. Therefore, it does not qualify as a force majeure event (Cass. civ., Dec. 5, 1927). The imposition of tariffs generally makes the performance of the contract obligations more onerous but does not prevent it. As a result, the condition of irresistibility is usually unlikely to be met, although the circumstances of the case shall be assessed thoroughly. This temporary or definitive impossibility of performing an obligation distinguishes force majeure from hardship (see below).

In summary, the qualification of the imposition of import tariffs as a force majeure event under French law depends very much of the circumstances of the case, although it seems that force majeure is likely to be excluded because, in most cases, it will not prevent the party suffering the imposition of import tariffs to perform its obligations.

A party suffering from the imposition of import tariffs could rely on relevant contractual mechanisms if the contract provides for them. An effective way to mitigate the impact of an increase in import tariffs is by anticipating them through specifically tailored contractual provisions. Key provisions include:

• A force majeure clause: This clause allows for the suspension of obligations and eventual termination of the contract without fault. The parties can explicitly decide that any increase (or an increase beyond a certain percentage) in tariffs will be considered as a case of force majeure. As such they would circumvent the strict criteria of Article 1218 of the legal regime (irresistibility, unpredictability, externality) and prevent the party in default to bear the cost of the increase, by allowing for the suspension of its obligations and, possibly, the termination of the contract without fault. This type of clause provides clarity and security, allowing for its application in specific, pre-agreed scenarios and could facilitate court interpretation in case of litigation. For example, the Marseille Commercial Court held in 2016 that if a contract expressly provides that a change in laws affecting the production or distribution of goods constitutes force majeure, then a change in import tariffs may fall under that clause and be treated as such (Marseille Commercial Court, May 30, 2016, n° 2015F01997).
   
• A hardship clause: This clause allows for the renegotiation, and, presumably, the termination of the contract, when significant and unforeseen changes increase the cost of the performance of the contract. Parties are free to define the conditions triggering renegotiation, and they may also include mechanisms for mediation or termination if renegotiation fails. Such clause must precise whether it replaces or completes the legal provisions on hardship provided by Article 1195 Civil Code (see below).
   
• A price revision clause: This clause links pricing to objective indicators, such as tariffs, raw material costs, or exchange rates. Once pre-defined thresholds are reached:
  
  
  • the contract price adjusts automatically without requiring party intervention (automatic price revision clause), or
     
  • the Parties meet to renegotiate the prices in good faith within the framework of the conditions set by the clause (ordinary price revision clause).

In the absence of such clauses, a party suffering from the imposition of tariffs may rely on legal provisions on hardship and good faith from the French civil code. These provisions are however more general, and less adapted with the business interests of the party.

1. Hardship (Article 1195 of the French Civil Code): Allows a party to request the renegotiation of a contract in case of:

• a change of circumstances unforeseeable at the time of the contract formation (please refer to our analysis of unpredictability under force majeure),
• which makes performance of the contract excessively costly, even though it remains possible (the costs or efforts required to fulfil contractual obligations must have increased significantly to the point of disrupting the economy of the contract).
• for a party which has not accepted to bear the risk of such a change (the risk must not have been accepted contractually).
  
  The legal regime of hardship does not constitute the more reliable option for a party because its conditions of applicability are not easily met and, should it be the case, the party is only entitled to request renegotiations, which the other party can refuse. In addition, the party asking for renegotiation shall continue to perform its obligations during the renegotiation process, even though they have become more onerous.
  In case renegotiations take place but fails, the parties can:
  • Mutually agree to terminate the contract , which does not lend itself easily at this stage of the renegotiations, or
  • Ask the court to revise or terminate the contract on fair terms, which is an option bearing too much contingency to be relied upon, the decision of the court being discretionary. 
    
    It is however important to note that the application of the hardship legal regime can be expressly excluded from the contract. In such case, it is recommended to replace it with a specific clause on hardship (see above). 

1. Good Faith (article 1104 of the French Civil Code): Even if no specific clause applies, French law requires that contract be performed in good faith. In certain situations, this principle may support amicable renegotiation or temporary adjustments to maintain the contractual balance. This shall be assessed on a case-by-case basis.
    
2. Sector-specific mechanisms: In contracts concluded between distributor and supplier for the sale of foods products for pets, Article L. 443-8 (IV) of the French Commercial Code provides for the obligation to include an automatic price revision clause according to the variation in the cost of agricultural raw materials, whether up or down, used in the composition of the food products or the products intended for feeding pets. In this clause, the parties are free to determine the revision formula and adjustment indicators, and the price adjustments occur automatically when triggers are met.

Certain contracts for the sale of food and agricultural goods with significantly fluctuating production costs must provide a renegotiation clause (Article L. 441-8 of the French Commercial Code). Conditions and triggers thresholds are freely selected by the parties, and renegotiation in good faith is required when fluctuations occur in selected inputs.

To better manage the risk of sudden import tariffs and similar trade barriers, parties should consider including specific contractual clauses that provide flexibility and protection against unforeseen changes in trade policy. The following clauses could be relevant, depending on the context and the negotiation power of the parties:

1. Force majeure clause: This clause should explicitly include changes in trade policy. For example: “Any change in law or regulation that could apply to the sale of the Products, including the imposition of import or export tariffs, quotas, or other trade restrictions, which materially increases the cost of performance of the Contract, shall constitute an event of force majeure. In such a case, the affected Party may be excused from performance or may request renegotiation of the contract terms to reflect the new circumstances.Should this specific force majeure event lasts more than X months, either Party is entitled to terminate the Contract, subject to the provision of a X-month notice period to the other Party”.
    
2. Hardship clause:  This clause should allow for contract renegotiation in the event of significant external disruptions. For example: “In the event that an external event beyond the control of the Parties - such as a change in import tariffs - materially affects the cost of the performance of the Contract for either Party of more than X% of the value of the Products concerned by the increased tariffs, the Parties agree to renegotiate the Contract in good faith. Should the renegotiation fail, either Party may terminate the Contract subject to the provision of a X-month notice period to the other Party.”
    
3. Price revision clause: To protect against cost volatility, the parties may include a price adjustment mechanism. For example: “In the event of a significant increase in import tariffs or the imposition of other trade barriers that lead to a material rise in the cost of performance for either Party, the Parties will meet to renegotiate the pricing terms. The parties undertake to negotiate in good faith to reach a fair adjustment.”
    
4. Termination for convenience clause: This clause provides a flexible exit mechanism for either party, regardless of whether the increase in import tariffs is considered in the contract. For example: “Either party may terminate this contract for convenience by providing written notice to the other party. Such notice shall specify a termination date, which must be no less than X months from the date of the notice.” The opportunity to include such a clause must however be weighed against the risk of offering any party with the power to terminate the contract for convenience at any time.

In any event, each clause must be tailored to specifically to the needs of the parties and the foreseeable context under which they might be needed.