Force majeure as a reason for exemption from default - Focusing on discussions in France -

The French Civil Code provides for strict liability and exemption from force majeure for damages resulting from non-performance. However, in practice, the cases of force majeure are expanded and interpreted to operate similarly to the non-performance liability principle. In French academic circles, there is also a strong view that force majeure, which is a ground for exemption from non-performance, is the same as no fault. The liability for damages resulting from non-performance is a variation of the original obligation, and the occurrence of the liability for damages is determined by the standards of the duty of care of the original obligation. On the one hand, imposing a good manager's duty of care, but on the other hand, saying that liability for damages arises if a higher duty of care is not fulfilled can be seen as a contradiction. In particular, it should be noted that the degree of duty of care may be changed by law or agreement of the parties. It is not reasonable to ignore these changes and unconditionally require irresistibility, impose a very high duty of care, and pay compensation for damages if this is not done. Even our civil law is based on the duty of care of a good manager (Articles 374 and 681). However, in some cases, the duty of care could be seen as a duty of care towards one's own property. (Articles 695 and 922). In addition, the degree of duty of care may be strengthened by agreement between the parties through strict liability, or the degree of duty of care may be weakened by indemnification for non-performance of obligations due to negligence. Uniformly in all cases, it is difficult to find a valid reason to impose a very high duty of care on the debtor, and force the debtor to perform the obligation unless performance is virtually impossible. If the debtor has fulfilled the duty of care or duty of good faith required by the provisions of the law or the agreement of the parties, it would be reasonable and appropriate to exempt the debtor from liability for damages even if there is a non-performance.