Force majeure and commercial contracts: what happens when the unexpected happens?

1. What is force majeure?

Force majeure is a legal concept used in commercial contracts to deal with unforeseen situations beyond the control of the contracting parties. It is often the subject of a specific clause in contracts.

However, force majeure can still be invoked outside the contract, within the framework of the law.

Force majeure is defined inarticle 1218 of the French Civil Code as ” an event beyond the debtor’s control, which could not reasonably have been foreseen when the contract was concluded, and whose effects cannot be avoided by appropriate measures, prevents the debtor from fulfilling his obligation “.

In order for force majeure to be recognized in a contract, four conditions must be met:

The event affecting the contract must be external, i.e. not dependent on the will of the debtor of the obligation.
For example: in a contract, the occurrence of a health crisis such as Covid-19 and, in particular, the first containment, is an event totally beyond the debtor’s control.
The event must be reasonably unforeseeable: the occurrence of the event must not have been reasonably foreseen when the contract was concluded.
For example: the fact that the creditor of the obligation does not perform is an event that was foreseeable when the contract was concluded. It does not, therefore, fall within the scope of force majeure.
An insurmountable event for the debtor: the debtor was unable to avoid the effects of this event by taking appropriate measures.
For example: containment.
The event must prevent performance of the debtor’s obligation: this impediment may be temporary, in which case performance is suspended. If the impediment is definitive, the contract is terminated ipso jure.

2. What happens if the conditions of force majeure are met?

2.1. Proof and notification :

Only the debtor can invoke force majeure. Force majeure is a mechanism for protecting only the debtor, not the creditor. Proof is therefore generally provided by the debtor, and is assessed in a sovereign manner by the courts.

It should be noted that force majeure may be invoked by contracting parties outside the context of any dispute. It can also be negotiated between the parties.

2.2 Effects on the contract :

If the event in question definitively prevents the debtor from performing his obligation, the contract will be rescinded. Termination has retroactive effect, meaning that the contract is deemed never to have existed.

However, if the event in question only temporarily prevents the debtor from performing his obligation, the contract is only suspended until the force majeure ceases.

3. How best to take force majeure into account when drafting your commercial contracts?

Article 1218 of the French Civil Code, which deals with force majeure, is not of public order. This means that it can be derogated from.

This implies that the parties to a contract have the possibility of defining the contours of force majeure, including the events considered as such and their consequences (such as suspension of the contract, its termination, the possibility of further negotiations between the parties).

It is therefore common, particularly in contracts between professionals, for a clause governing force majeure to be included: we recommend that you examine it carefully before committing yourself.

Events commonly mentioned directly in current force majeure clauses include health crises, natural disasters and strikes.

Commercial contracts may therefore contain specific provisions limiting or excluding liability in the event of force majeure. It is important to understand these clauses when drafting or negotiating a contract.

That’s why we’re here to help you draw up your commercial contracts.

The health crisis has shown us the importance of a well-drafted contract to protect ourselves and avoid being caught in the trap of a contract that has become impossible to enforce.

27 February 202417 April 2025

Profit-sharing agreements under the Syntec agreement

Incentive and profit-sharing schemes apply to companies governed by the Syntec collective bargaining agreement. What do these bonuses correspond to? How can they be paid out?

Incentive and profit-sharing agreements are employee savings schemes designed to define the terms and conditions for redistributing company profits and results. They can thus encourage employee motivation by associating them with the company’s economic performance.

The law of November 29, 2023 introduced a new mandatory experimental value-sharing scheme for small businesses. This means that employee savings schemes can now be applied to an ever-increasing number of companies. We explain the details of this law below.

What is a profit-sharing agreement?

A profit-sharing agreement pays employees a bonus linked to the company’s performance. Setting up such an agreement is optional.

The Syntec Convention therefore makes no specific provision for this agreement.

To be implemented, profit-sharing must be the subject of a collective agreement. This agreement is concluded for a period of 1 to 5 years and provides for :

Reasons for introducing profit-sharing ;
Criteria for distributing the total amount of profit-sharing among employees ;
The choice of profit-sharing calculation method ;
Dates and conditions for payment of the profit-sharing bonus ;
Procedures for dealing with profit-sharing disputes.

In companies with fewer than 50 employees, profit-sharing may also be introduced by unilateral decision of the employer. In this case, a “procès-verbal de carence” must be filed, less than 4 years old, proving that no employee representative body has requested the introduction of such a scheme, or establishing the failure of negotiations.

The agreement specifies the profit-sharing calculation formula and the criteria for allocation among employees. The distribution can be :

Uniform, i.e. all employees receive the same amount;
Proportional: the bonus received by employees is proportional to their salary or time spent with the company;
Depending on these two modes, the choice of allocation may combine several of these criteria.

What is a profit-sharing agreement?

Profit-sharing is a mandatory employee savings scheme for companies with more than 50 employees. It enables employees to share in the company’s profits.

It can be set up by means of a company-wide collective agreement. The profit-sharing agreement must contain provisions concerning :

The formula used to calculate the special profit-sharing reserve (RSP),
The period of unavailability of beneficiaries’ rights and cases of early release,
Conditions and deadlines for requesting immediate availability of sums,
Reserve allocation methods and ceilings,
The nature and management of beneficiaries’ rights.

The law provides a formula for calculating the amount of the special profit-sharing reserve, i.e. the share of profits to be distributed among employees: [½(B – 5% C)] x [S/V].

B: net income

C: shareholders’ equity

S: salaries

V: company added value

It is possible to provide for another formula, which must then be just as favorable to employees.

As with the profit-sharing scheme, the distribution among employees is based on selected criteria:

Uniformly across all employees,
Proportionally according to salary or time worked,
Or a combination of the above criteria.

The amount of profit-sharing paid out is, by its very nature, uncertain: it depends on the company’s profits for the previous financial year, which may vary from one year to the next. It cannot therefore be determined in advance.

For employees

Each company is required to provide its employees with an employee savings booklet, setting out the employee savings schemes set up within the company, such as a PEE (company savings plan) or a Perco (collective retirement savings plan).

The employee can then request immediate payment of the profit-sharing bonus within 15 days of being informed of the amount due.

Otherwise, the bonus will be placed in the employee’s company savings plan. It will then be available at the end of the blocking period for the plan concerned (5 years for the PEE, until retirement for the Perco), except in the case of early release applicable to the plan.

Premiums invested in an employee savings account are not subject to income tax.

For the company

Amounts paid out under incentive and profit-sharing schemes are exempt from social security contributions and social security charges when the company is below certain thresholds (fewer than 250 employees for incentive schemes and fewer than 50 employees for profit-sharing schemes).

These sums are also deducted from taxable income.

However, two cumulative limits must be respected in order to benefit from profit-sharing exemptions:

Total profit-sharing bonuses paid to all employee beneficiaries may not exceed 20% of total gross salaries paid,
The total amount of profit-sharing received by an employee per year may not exceed €34,776.

What changes?

Since November 29, 2023, a new mandatory experimental value-sharing scheme has also been in force for small businesses. It will run for 5 years from the law’s promulgation, i.e. from November 29, 2023 to November 2028. It concerns :

Companies with 11 or more employees who are not required to set up a profit-sharing scheme.
Companies that have made a net profit for tax purposes equal to at least 1% of sales for three consecutive years.
Please note: Net profit for tax purposes corresponds to the profit taken into account in the legal formula for calculating the special profit-sharing reserve, set out inArticle L.3324-1, 1° of the French Labor Code.

When these conditions are met, you must implement one of the following three measures:

Set up a profit-sharing agreement;
Set up a profit-sharing scheme;
Contribute to an employee savings plan;
Pay a value-sharing bonus.

Important: If your company already implements one of these three schemes, then you will be exempt from this obligation, which you are already implementing in practice.

This obligation will apply to financial years starting on or after January 1, 2025, and the three previous financial years will therefore be taken into account to determine whether or not you need to implement one of these systems.

Naturally, DESRUMAUX AVOCATS will be happy to provide you with further information on these systems, and to help you set them up.

27 February 202417 April 2025

How do Syntec’s fractional days work?

Employees covered by the Syntec collective bargaining agreement are entitled to paid vacations, which they can earn and take over different periods. The period in which these paid vacations are taken determines their entitlement to additional paid vacations, known as “split days”.

What are fractional days?

Employees with at least one year’s continuous service with the company are entitled to 25 days’ paid leave.

Employees who have not completed one year’s continuous service are entitled to a number of paid vacation days calculated on a pro rata basis, based on 25 working days per year.

The period taken into account to determine the presence of employees in the company and the acquisition of these days is laid down in the Syntec collective bargaining agreement, and runs from June 1 of the previous year to May 31 of the current year.

These paid vacations can be taken over a period starting on May 1 and up to a maximum of 13 months.

Employees are free to take their vacations during this period.

However, in order to encourage employees to take their paid vacations outside the legal period (which runs from May 1 to October 31), the Syntec collective bargaining agreement provides for additional days off for paid vacations taken outside the legal period, known as fractioning days.

What does the Syntec collective bargaining agreement cover?

The Syntec collective bargaining agreement provides for additional days off, known as fractional days, when paid leave has not been taken in the period between May 1 and October 31.

The first 4 weeks of paid vacation, known as “main leave”, can be taken outside this period, giving entitlement to additional leave.

Please note: the 5th week of paid leave taken outside the legal period does not give entitlement to split days.

Split days are therefore granted to employees according to the number of paid vacations taken outside the period from May 1 to October 31, as follows:

when 5 working days of paid vacation have been taken outside this period, 2 additional working days of paid vacation are granted;
when 3 or 4 working days of paid vacation are taken outside this period, 1 additional working day of paid vacation is granted.

How do you set up this system within your company?

The implementation of paid leave splitting must be the subject of a company agreement or an agreement between the employer and the employee concerned.

Caution: according to the French Supreme Court, entitlement to these additional days of leave arises solely from the fact of splitting, whether the employer or the employee has taken the initiative (Cass. soc., Oct. 10, 2018, no. 17-17.890; Cass. soc., Dec. 14, 2022, no. 19-23.843).

One exception:

The employee’s agreement is not required when paid leave is split up due to the company being closed.

Finally, it is still possible to adapt, or even abolish, the right to split leave by company or establishment agreement.

In the absence of a company agreement, the waiver of fractional leave must be the subject of an individual written agreement with the employee.

Naturally, Cabinet DESRUMAUX is available to help you with any questions you may have about your entitlement to paid leave and split days, and their implementation in your company.

8 February 202417 April 2025

Kilometric allowances under the Syntec collective agreement

Transport costs correspond to expenses incurred by the employee for the needs of his professional activity.

Indeed, employees are often required to use their personal vehicles for work purposes, or to use public transport or public bicycle rental services to get to work.

These expenses may be reimbursed by the employer. These expenses are then exempt from social security contributions, within certain limits and subject to certain conditions.

What is the mileage allowance?

When an employee is obliged to use his or her personal vehicle for work-related purposes, the employer may reimburse expenses in the form of a mileage allowance.

For this to happen, the employee must meet a condition relating to constraint. They must not be able to use public transport, either because of the distance from their home or workplace, or because of their working hours.

This mileage allowance is therefore not admissible when the distance from the employee’s home and the use of his personal vehicle are due to personal convenience.

When this condition is met, the employee’s mileage expenses may be reimbursed for the use of his or her vehicle in the course of his or her work. An allowance is then paid to cover the cost of fuel, maintenance, insurance and vehicle depreciation.

☛ Please note: there are a number of different ways of paying for employee transport costs. Only one of these is compulsory: 50% of the cost of public transport season tickets purchased by employees for all journeys between their usual place of residence and their place of work.

The mileage allowance is an optional form of reimbursement, in the same way as the reimbursement of fuel and supply costs for electric, rechargeable hybrid or hydrogen vehicles, the transport bonus, or the sustainable mobility package.

How do I set up a mileage allowance?

The mileage allowance is optional. It can be set up by company agreement, or by individual agreement with the employee, for example in the employment contract.

The Syntec collective bargaining agreement does not contain any specific provisions on this point.

However, the amounts and terms of the allowance are set with reference to the scales established by the tax authorities, in order to benefit from exemptions from social security contributions.

These scales take into account the kilometers driven and the horsepower of the employee’s vehicle. For 2024, the rates are as follows:

Rates for one car
Fiscal power	Up to 5,000 km	From 5,001 to 20,000 km	Over 20,000 km
3 hp and less	d x 0.529	(d x 0.316) + 1,065	d x 0.370
4 hp	d x 0.606	(d x 0.340) + 1 330	d x 0.407
5 cv	d x 0.636	(d x 0.357) + 1 395	d x 0.427
6 hp	d x 0.665	(d x 0.374) + 1 457	d x 0.447
7 hp and more	d x 0.697	(d x 0.394) + 1,515	d x 0.470

d = distance travelled on business in km

For electric vehicles, travel expenses are increased by 20%.

Scales for a motorcycle
Fiscal power	Up to 3,000 km	From 3,001 to 6,000 km	Over 6,000 km
From 1 to 2 hp	d x 0.395	(d x 0.099) + 891	d x 0.248
From 3 to 5 hp	d x 0.468	(d x 0.082) + 1 158	d x 0.275
Over 5 hp	d x 0.606	(d x 0.079) + 1 583	d x 0.343

d = distance travelled on business in km

Compensation paid is exempt from social security contributions within the limits of these scales.

However, to benefit from these exemptions, you must be able to justify :

The tax rating of the vehicle used by the employee,
The distance between home and work,
The means of transport used by the employee,
The number of trips made each month.

Proof of business use of the personal vehicle is the employer’s responsibility.

It is therefore essential to ask the employee to provide all these documents (proof of address, vehicle insurance, etc.).

When mileage allowances paid do not exceed the amounts set by the tax authorities, they are deemed to have been used in accordance with their purpose.

It is still possible to pay compensation in excess of the amounts set by the tax authorities. However, in such cases, proof must be provided that the employee has actually used the indemnities for their intended purpose. Otherwise, the excess amount is subject to all social security contributions.

☝ Note: it is also possible to pay for fines incurred as a result of the employee’s bad behavior (speeding, unauthorized overtaking, etc.) or vehicle malfunction (lack of roadworthiness tests, etc.). In this case, these expenses represent a personal outlay, and constitute an element of remuneration subject to social security contributions.

Parking and toll violations are the responsibility of the registration certificate holder. Their payment therefore constitutes a benefit paid on the occasion of or in return for work, and is subject to social security contributions.

CABINET DESRUMAUX AVOCATS will be happy to answer any questions you may have about setting up a mileage allowance.

5 February 202417 April 2025

SMIC Hôtelier 2024

To combat current inflation, the minimum growth wage was raised by decree on December 20, 2023.

This decree raises the gross hourly SMIC from €11.27 to €11.65, representing an increase of 1.13% since the last increase in January 2023.

⚠ Please note: The HCR collective bargaining agreement sets an agreed minimum wage, known as the SMIC hôtelier, which is currently higher than the legal SMIC.

Minimum wages are set by a rider to the NCC dated June 1, 2023.

The minimum wages set by this rider should therefore be taken into account, rather than the legal minimum wage. In fact, since the amendment of June 1, 2023, minimum wages under the HCR collective agreement have exceeded the legal minimum wage.

The adjusted salary scale of the HCR Convention, which must be taken into account, is as follows:

Level I	Level II	Level III	Level IV	Level V
11.72 €	12.00 €	13.04 €	14.17 €	18.16 €
11.80 €	12.27 €	13.26 €	14.54 €	21.50 €
11.90 €	12.89 €	13.69 €	15.17 €	27.81 €

Failure to comply with this minimum hourly rate may result in you being ordered to pay back wages, which may represent considerable sums if the violation has lasted for several months.

DESRUMAUX AVOCATS is at your disposal to answer any questions you may have about the national collective agreement for hotels, cafés and restaurants.

5 February 202417 April 2025

The right to continuing education under the Syntec agreement

Are you covered by the Syntec collective bargaining agreement and would like to know what professional training rights your employees have?

Syntec branch players adopted an agreement on October 31, 2019 to specify and define the rights relating to professional training for branch employees, and in particular their Professional Training Account (CPF).

The CPF is an individual account, funded in euros at the end of each year through periods of activity, at a rate of 500 euros per year up to a ceiling of 5,000 euros, for a working time at least equal to half the legal or conventional working time.

This account enables each individual to benefit from continuing training, via a variety of mechanisms. It is available throughout a person’s working life, whatever their status (employee, job-seeker, self-employed). It is activated at the initiative of the beneficiary.

☝ The CPF can be implemented as part of individual, autonomous projects, or shared between employer and employee (enabling training to be carried out during working hours).

If the training is to take place during working hours, this must be agreed with the employee, who will then be paid during the training period. Working hours can also be adjusted to enable the employee to take part in the training (training partly during working hours, granting of time off, etc.).

The CPF gives access to :

Training courses leading to a diploma, professional qualification, Certificat de Qualification Professionnelle (CQP) or block of skills, registered in the Répertoire National des Certifications Professionnelles (RNCP);
Training courses leading to certification or accreditation registered in a new “Répertoire Spécifique des Certifications et Habilitations” (RSCH, which replaces the CNCP inventory), including the CléA certificate (socle de connaissances et de compétences);
Accompanying initiatives to validate acquired experience (VAE), which enables anyone who has worked in a professional activity to obtain, under certain conditions, a certification (diploma, title or certificate of professional qualification) registered with the RNCP;
Skills assessments, which enable employees to analyze their professional and personal skills, as well as their aptitudes and motivations, in order to define a professional project and, where appropriate, a training project;
Preparation for B and HGV driving licenses;
Support and advice for business start-ups and takeovers;
Actions linked to volunteer work;
Free, easy-to-access career development advice, information and support services, as part of the regional public career guidance service.

Employees can also benefit from a CPF for professional transition, subject to conditions of seniority and validation of the project by a regional interprofessional joint commission (CPIR). This scheme is aimed at employees wishing to change profession or trade. They can then mobilize the rights registered on their CPF for this purpose, and benefit from training, validation of acquired experience, certification, etc.

Finally, the Syntec collective bargaining agreement collaborates with various bodies to facilitate the organization and management of professional training services.

The ATLAS skills operator (Opco Atlas): its mission is to support companies in analyzing and defining their vocational training needs, to improve information and access for employees to training schemes, to support them in their certification mission (repositories of skills, competencies required for a diploma, etc.), to finance apprenticeship and professionalization contracts, etc.
The CPNEFP (Commission paritaire nationale de l’emploi et de la formation professionnelle – national joint committee for employment and vocational training): which draws up training policy, determines the levels of funding for apprenticeship and professionalization contracts, proposes new certification courses…
The Observatoire Prospectif des Métiers et des Qualifications (Observatory for Prospective Professions and Qualifications ): provides knowledge and analysis of the job market, and identifies sectors under pressure and dynamic sectors, in order to help employees plan for the future and create their own projects.

DESRUMAUX AVOCATS will be happy to provide you with further information on the Syntec Agreement.

5 February 202417 April 2025

Economic redundancies and directors’ responsibilities: what you need to know

Are you a company director who wants to know whether you can be held liable for redundancies?

First of all, we need to distinguish between criminal liability and civil liability. The former is incurred by the Public Prosecutor’s Office in the event of the commission of an offence under the Penal Code, in order to punish. The latter is incurred by the person who considers himself to be the victim, with the aim of compensating for the damage caused.

⚠ These two responsibilities can be combined.

As a manager, the decisions or management choices you make may have consequences that could engage your civil or criminal liability.

Civil liability

As a company director, you may be held liable for a fault in the management of your company. Although it is not, in principle, up to the judge to assess the employer’s management choices and their consequences ( Cass. plen. December 8, 2000, no. 97-44.219 ), the latter assesses the real and serious nature of the redundancies.

To do this, the judge assesses the economic reason given for the dismissal (such as economic difficulties or cessation of activity), and checks that this reason is not due to any fault on the part of the employer.

As mismanagement is not clearly defined, it is assessed by judges according to the specific circumstances of each situation. In particular, it is designed to penalize negligence and fraudulent maneuvers resulting in redundancies.

For example, the compulsory liquidation of a company resulting from the employer’s fault or carelessness, and which led to the company ceasing to operate, does not constitute a real and serious reason for dismissal(Cass. Soc., July 8, 2020, no. 18-26.140).

However, a simple error in assessing the risk inherent in any management choice does not in itself constitute such a fault (Cass. soc. December 14, 2005 no. 03-44.380 ). It may be a matter of simple negligence or carelessness.

Subsequently, in order to engage the liability of the directors, it is necessary to establish proof of this fault, and a causal link between this fault and the prejudice suffered by the company or the employees.

Third parties may also seek to hold company directors liable. However, they can only invoke faults that are detachable from the duties of management. In such cases, they will need to demonstrate intentional misconduct of a particularly serious nature, incompatible with the normal exercise of management functions.

Lastly, associates may seek to hold directors liable for any damage suffered by the company or associates, on the basis of the French Commercial Code.

Criminal liability

If a company commits a criminal offence, its directors may be held criminally liable. Such liability may arise, for example, in cases of tax fraud, forgery, negligence of safety regulations, etc.

☝ In the context of redundancies, criminal liability will therefore only be incurred if criminal offences can be characterized.

Certain offences are also provided for in the French Commercial Code, and are designed to punish managerial behavior in a context of economic difficulty. This is the case, for example, of misuse of corporate assets(article L.241-3 4° of the French Commercial Code), which consists in a manager knowingly using the company’s assets, credit, powers or votes for direct or indirect personal ends.

DESRUMAUX AVOCATS is at your disposal to help you implement redundancy procedures.