HARDSHIP IN FRENCH, ENGLISH AND GERMAN LAW

Abstract

The contracts are made to be kept – pacta sunt servanda. This maxim surely is the cornerstone of any effective contract law system, but it cannot, and never has, reigned supreme in each and every legal system. Unexpected events that dramatically change the landscape of a particular contract do occur, rendering its performance sometimes impossible but more often much more onerous for one party. This article deals with the second situation. The aim is to analyze the standpoint of three major European legal systems – French, English and German – on the issue of what (if anything) happens to the contract and rights of the parties if contractual performance becomes more onerous than initially envisaged. This area offers fertile ground for comparative analysis as it will be shown that these three major legal systems adopt genuinely different solutions. These can be sorted on a scale, with the French law being by far the least responsive and German law on the other containing codified rules to flexibly deal with these situations.