The theory of the lack of foresight provides that, within the framework of the execution of a Public service contract, the contracting one of the administration must continue the execution of the contract even if occurs an unforeseeable and temporary event which makes it more difficult. It will be entitled to a compensation partial of the injury which is caused to him. Rejected by the legal judge, this theory is accepted in theory by the French administrative judge.

Contents of the theory

The theory of the lack of foresight was fixed in the stop “general Company of lighting of Bordeaux” of the Council of State of March 30th, 1916. Its base is the general interest.

The event must be foreign with the will of the parts, contrary to the case under consideration by the Théorie because of the Prince. It must be also abnormal and unforeseeable at the time of the contract signature. As its effect is temporary, it does not constitute a case of Major force which would involve the end of the contract. It can be a question of an economic risk or intervention of a third.

The theory of the lack of foresight is opposed to the Théorie unforeseen subjections insofar as it envisages a partial and nonintegral compensation the contracting one.

Jurisprudence

In the case of the stop general Company of lighting of Bordeaux , this company, dealer of the Town of Bordeaux for public lighting (at that time lighting ran on gas known as “of coal”) because of war a raising of prices of the coal of more than five times, completely unforeseeable had undergone during the signature of the concession contract.

The Council of State considered that, although the dealer had normally to assume the variations of the price of the raw materials which constituted a risk of the treaty of concession, this quintuplement of the price of coal was completely unforeseeable and external with the will of the parts. It thus decided, on the one hand, that the company was to continue to ensure the execution of the service but, on the other hand, that it was to obtain Town of Bordeaux a compensation for the consequences of this situation.

Since this stop the administrative Jurisprudence specified this theory which could not be summarized with the compensation for a simple shortfall or to be confused with the Fait of the prince or strict the Major force.

On the other hand the Court of appeal firmly rejected any possibility for the court dealing with the substance of a case of modifying conventions with the visa of the article of the Civil code which lays out that “legally formed conventions hold place of law with those which did them. They can be revoked only of their mutual assent or for the causes which the law authorizes. They must be carried out in good faith. ” This very firm position of the Court of appeal is devoted by the stop of March 6th, 1876, Canal of Craponne .

From now on, it is constant to insert, as well in the public service contracts as civil, of the escalator clauses of the prices, based on various indices such as the index of construction, in order to ensure an economic safety the contract, natural tool of the legal security of the business connection.

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