Abstract: Louisiana has codified in its Civil Code one of the most absolute versions of pacta sunt servanda found in comparative law. It leaves so little room for exonerating or excusing obligors from the impediments and hardships caused by force majeure events that, in the author’s view, Louisiana contract law may be ranked, in terms of rigorousness, above English law, American law, and the recently reformed French law. In different degrees, these countries provide the obligor with wider, more flexible, and even multiple defenses in the face of force majeure, but Louisiana permits but one defense: the stringent defense of “true” impossibility, which, as the jurisprudence demonstrates, is rarely satisfied. It will be argued that the situation is ironic if not paradoxical, for Louisiana might be regarded as one of the world’s capitals or epicenters of force majeure, as shown by its recurrent subjection to hurricanes, epidemics, floods, and other disasters that repeatedly interfere with the ability of obligors and debtors to perform their contractual promises. This article deals with the paradox of upholding the (near-absolute) sanctity of contracts in a jurisdiction that is a veritable incubator of force majeure events.
Keywords: Force majeure; impossibility of performance; frustration of purpose; impracticability; fortuitous event; imprévision; rebus sic stantibus; pacta sunt servanda * Thomas Pickles Professor of Law and Co-Director of the Eason Weinmann Center of International and Comparative Law, Tulane University, New Orleans, Louisiana, USA; D. Phil. Pembroke College, Oxford University; Docteur en droit (Honoris Causa) Paris-Dauphine University. The author may be contacted at firstname.lastname@example.org. This article is a slightly expanded version of the Eason Weinmann Lecture that was delivered at the Tulane Law School in November 2022. The Eason-Weinmann Lecture is sponsored by the Eason Weinmann Center for International and Comparative Law.
“To contract is to foresee. Every contract is a wager on the future.” (“Contracter c’est prévoir. Tout contrat est un pari sur l’avenir.”) —Georges Ripert
“One need not keep a promise to return a sword to a person who has become insane.” —St Augustine
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