The French civil law reform entered into force on 1 October 2016 and introduced the theory of unpredictability into the French Civil Code. This theory has expanded the powers of the judge, who is now able to substantially change the terms and conditions of an agreement under certain conditions. According to the new article 1195 of the French Civil Code, in the event of an unforeseeable circumstance that (i) significantly increases the cost of performance of the contract for a party and (ii) was unforeseeable at the time of the conclusion of the contract, the judge may decide either to adjust the terms of the contract or to terminate the contract at the request of a party. Unfortunately, the Luxembourg Civil Code does not contain a similar provision, and Luxembourg courts are generally reluctant to change the terms and conditions of the contract in court. In a contractual context, the legal term “force majeure” is implemented in particular in Article 1148 of the Civil Code, but without giving a clear legal definition to “force majeure” itself. According to case law and doctrine, “force majeure” can be defined as unforeseeable circumstances that absolutely prevent a contracting party from fulfilling its contractual obligations. The parties may also contractually agree on the definition of “force majeure”. Article 1148 of the Luxembourg Civil Code provides: “Damages are not due if the debtor or an accidental event has been prevented from giving or doing what he was obliged to do or has done what he was prohibited from doing.” FM is, according to case law and legal authors, an unforeseeable event that prevents a contracting party from fulfilling its obligations. In accordance with articles 1147 and 1148 of the Civil Code, a party may be released from contractual liability if it proves that a breach of contract was caused by an incidental event that is not attributable to it, also commonly known as force majeure. A party wishing to avoid liability for damages may invoke article 1148 of the Code. The party must prove that the obstacle contains the 2 elements and that the measures taken cannot reasonably prevent the occurrence of a case of force majeure or its consequences. In the absence of such a termination clause, the performing party or the party concerned may invoke the legal situation under Article 1148 of the Code to apply for a court order in accordance with Article 1184 of the Code to terminate the contract due to the occurrence and effects of force majeure, provided that sufficient evidence is provided.

Article 1148 of the Civil Code provides: “No compensation is due if the debtor has been prevented from giving or doing what he was obliged to do …” as a result of a “case of force majeure” or an accidental event. The impossibility must be complete and definitive. The prevailing case law assumes that serious events which make it more difficult or more costly to perform an obligation are not sufficient to give rise to a “case of force majeure”. Therefore, even if the unprecedented coercive measures taken recently by the Government could be regarded as unforeseeable circumstances in order to benefit from “force majeure”, the debtor must also demonstrate the absolute impossibility for it to comply with its contractual obligations and the direct link between that impossibility and the State measures. In practice, when assessing whether Covid-19 is considered a case of force majeure, the judge will first assess whether the clause explicitly mentions pandemics or epidemics as covered events. Otherwise, the judge will determine whether the event still falls within a broader contractual definition of force majeure provided by the parties. Finally, if the contract does not contain a definition of force majeure, the Luxembourg courts turn to the legal definition of Articles 1147 and 1148 of the Civil Code. Articles 1147 and 1148 of the Civil Code of Mauritius (the Code) set out the rules applicable to cases of force majeure. The definition of force majeure in Mauritian law is a banal principle according to which there must be 2 cumulative elements [1]: Yes. Article 1148 of the Luxembourg Civil Code covers situations in which contractual obligations cannot be fulfilled due to a case of force majeure.

For the avoidance of doubt, it should be noted that the application of the event of force majeure is not subject to any conditions other than those expressly provided for herein (including, for the avoidance of doubt, the conditions required by Article 1148 of the Luxembourg Civil Code)”. The parties must first check whether or not their contract contains a force majeure clause. In the absence of a contractual provision, articles 1147 and 1148 of the Code provide for a remedy for the party who requests a total or partial exemption from liability for the payment of damages. Article 1148 of the Luxembourg Civil Code provides: “No compensation is due if, following a case of force majeure or an accident, the debtor has been prevented from delivering or doing what he has undertaken to do, or if he has done what was prohibited.” 1 Art. 1148 There is no need for any damages where, as a result of force majeure or fortuitous event, the debtor has been prevented from giving or doing what he was obliged to do, or has done what was forbidden to him. The Luxembourg Civil Code does not know the theory of unpredictability. Although Mauritian contract law is founded and governed by its French counterpart, the Code does not adopt a strict provision similar to Article 1195 of the French Civil Code, according to which the parties are required to negotiate if a change in unforeseen circumstances at the time of conclusion of the contract entails an excessive burden in the performance of obligations, so that one party would not have assumed the risks.