Private Law Theory

ABSTRACT
The article examines the tension in Louisiana contract law between the strict doctrine of pacta sunt servanda and the realities of supervening events that drastically alter contractual obligations but do not render performance absolutely impossible. Despite its dual heritage in civil law and common law – and frequent exposure to natural disasters – Louisiana has historically upheld a narrow definition of force majeure, requiring an absolute impossibility of performance and rejecting claims based merely on severe economic or practical hardship.

Early jurisprudence set a rigid precedent by denying relief for contracts rendered significantly more burdensome by hurricanes. Scholarly efforts – led notably by Professor Litvinoff – proposed more flexible interpretations that would allow courts to consider the impracticability of performance.

Hurricane Katrina and subsequent cases reinforced the courts’ adherence to a strict force majeure tradition, although occasional rulings have shown a willingness to use implied good-faith obligations to require renegotiation or specific performance. The COVID-19 pandemic has prompted renewed debate, particularly when force majeure clauses did not explicitly reference pandemics but were nevertheless interpreted to encompass them. Scholars now suggest that further reforms, potentially influenced by the French Code’s new imprévision provision and shaped through the Louisiana State Law Institute (LSLI), could finally align Louisiana law with broader trends accommodating supervening circumstances short of true impossibility.

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Angela Carpi, Between Facts and Law. The Bottleneck of Louisiana Contract Law Facing Supervening Events, European Review of Private Law volume 33, issue 5/6 pp 1145-1166 (2025).