Contrat et imprévision : approche comparée
Hardship is a topic at the border between contractual freedom and contractual justice. However, a new glance can be carried on this institution of contract law through the theory of relational contracts developed by Ian R. Macneil or the contrat-cooperation theorised by Suzanne Lequette. This theory invites to take into account the intrinsic value of the contractual link and the incompleteness of the contract. Imprévision thus forms integral part of the relational contracts from their nature. The primary purpose of the relational contrat is to continue, forcing the contractors to standards of cooperation and flexibility. According to good faith, the relationnality would be the foundation of changed of circumstances. A comparative study of the regime of changed of circumstances makes certain clarifications. There appear two approches of the changed of circumstances, one restricted based on economic modifications, and the second wide one, based on the purpose or foundation of the contract. Finally, the effects of the changed of circumstances should give priority to maintain the relation and the norm of cooperation by imposing renegotiation then by allowing judicial adaptation of the terms of the contract. Termination, contrary to the nature of relational contracts, should intervene only exceptionally.
Imprévision Hardship Geschäftsgrundlage Eccessiva onerosità Changed of circumstances Relational contract Renegotiation Contractual relation Judicial review of the contractual terms Adaptation of the terms of the agreement