Consent To Assignment Of Contract

In standard form agreements (), new article 1190 provides that, in the case of doubt, the contract is to be interpreted against the party who proposed the contract.New article 1179 distinguishes between absolute nullity (in the case of contracts which violate a provision of law which protects the general interest), which can be requested by any person who can demonstrate an interest as well as by the public prosecutor, and relative nullity, which can be requested only by the person which the law is intended to protect.New article 1104 provides that contracts must be negotiated, concluded and performed in good faith (previously the implied obligation of good faith applied only to performance) and failure to comply with such obligation can not only trigger the payment of damages, but also result in the nullification of the contract.

In the event of a “battle of the forms” between two series of general condition (e.g., general sales conditions and general purchase conditions), those conditions which conflict are without effect.

Under new article 1123, if the undertaking party in a preference pact enters into an agreement in violation of this preference pact, the original beneficiary may obtain damages, and, if the new counterparty knew of the existence of the preference pact and the intention of the beneficiary to benefit thereby, the beneficiary may bring an action to have the offending contract declared null or request the judge to have the beneficiary substituted for the offending party in the contract.

Because the article expressly states that it does not apply to a party who has assumed the relevant risk, it is likely that parties to French law contracts will henceforth include language specifically stating that risk of “hardship” is assumed; the Loan Market Association has for example recommended such an approach to loan agreements.

Force majeure is defined by new article 1218 as the occurrence of an event which is beyond the control of the obligor, which could not have been reasonably foreseen at the time of the entry into of the contract and the effects of which cannot be avoided by appropriate measures and which prevents performance of its obligation by the obligor.

Conversely, new article 1118 provides that acceptance of the offer may be freely retracted as long as it has not been received by the offeror.

Consent To Assignment Of Contract

New article 1119 provides that general conditions invoked by a party have no effect against the other party unless they have been made known to such other party and accepted by it.This has been traditionally opposed to the Anglo-American principle of interpreting ambiguous provisions in the manner a “reasonable person” would understand them.However, under new article 1188, if the mutual intention of the parties cannot be determined, the contract is to be interpreted according to the sense that a reasonable person placed in the same situation would give to it.New article 1216 provides that a contracting party may, with the consent of its co-contracting party, assign its position as party to a contract; such an “assignment of contract” () will simplify considerably the manner in which contractual transfer occurs under French law.Such consent may be given in advance, including in the contract entered into between the future assignor and assigned party, in which case the assignment enters into force with respect to the assigned party when the contract concluded between the assignor and the assignee is notified to the assigned party or when the assigned party so acknowledges.If the assignor is not discharged by the assigned party, any security interests previously granted remain in force.Otherwise, security interests granted by third parties remain in force only with their agreement.New article 1195 provides that if a change in circumstances which could not have been predicted at the time the contract was entered into renders performance of the contract excessively onerous for a contractual party who had not assumed such risk, such party may request its counterparty to renegotiate the contract.The requesting party must continue to perform its obligations during the renegotiation.A party may request in writing to a person who would be entitled to claim the nullity of a contract either to confirm the validity of the contract or to bring an action to nullify the contract within six months, failing which the person will be foreclosed from alleging the nullity.If an action in nullity is not brought within six months, the contract will be deemed to have been confirmed.


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