L’impossibilité d’exercer un droit. Pour une évolution du droit belge de la force majeure à la lumière des droits français et néerlandais - European Review of Private Law View L’impossibilité d’exercer un droit. Pour une évolution du droit belge de la force majeure à la lumière des droits français et néerlandais by - European Review of Private Law L’impossibilité d’exercer un droit. Pour une évolution du droit belge de la force majeure à la lumière des droits français et néerlandais 31 1

In Belgian and French law, force majeure traditionally refers to an obstacle, subsequent to the conclusion of the contract, which makes it impossible for the debtor to perform his obligation, without this non-performance being attributable to him. However, it is necessary to examine whether this ground can be invoked when the impossibility applies not to the debtor’s obligation but to the creditor’s right. The article thus analyses to what extent a creditor can rely on force majeure when he is prevented (for example, because of illness) from benefiting from the performance due to him. 

Based on a decision of the French Court of Cassation of 25 November 2020, which has been commented on extensively, the author first explains the position of legal scholars and case law – both Belgian and French – on the question of whether a creditor can invoke force majeure when he is unable to exercise a right, and points out that the solutions are inconsistent or, at the very least, marked by hesitation. 

The author then shows that certain situations in which the creditor cannot benefit from the promised performance can in fact be linked to the traditional definition of force majeure. Thus, the creditor who is prevented from exercising his right can be released from his obligation to pay, sometimes because another – non-monetary – obligation can be identified for him, and sometimes because of the application of the risk theory. Nevertheless, he points out that the classical approach – in terms of the impossibility of performance of an obligation – is hardly satisfactory for solving all cases of impossibility of exercising a right, and that it sometimes has artificial sides. 

Thirdly, the study of Dutch law, including the notions of schuldeisersverzuim (mora creditoris) and schuldeisersovermacht (‘creditor’s force majeure’), suggests that situations of impossibility to exercise a right should be approached more in terms of a ‘sphere of risks’. Finally, the author examines to what extent the lessons learned from the analysis of Dutch law can be transposed to Belgian law. He proposes certain evolutions of the theoretical framework of force majeure, which would make it possible to provide a more appropriate response to the hypotheses of impossibility to exercise a right.

European Review of Private Law