4 years of applications, final refusal, zero damages
the story of a petrol station never built (Casablanca Commercial Court 2024)

1. The core reasoning — the qualified act of the sovereign

The court structures its reasoning in two steps. First, it restates the nature of the obligation: “the obligation to obtain the authorizations is analyzed as an obligation of result”. This qualification is severe for the debtor — it means it is not enough to have done everything to try; you must have succeeded.

Second, the court tempers that severity with the force majeure exception, in a formula worth quoting:

The qualification as an act of the sovereign activates article 268 of the DOC, which releases the debtor from all contractual liability where performance becomes impossible through fortuitous event or force majeure. The contract is rescinded without any order to pay — each party bears its own losses, but with no damages payable to the other.

2. The three conditions of force majeure met

Force majeure classically requires three cumulative conditions. Here is how the court ticks each one in this ruling:

• Externality: the new development scheme comes from an administrative decision the contracting parties could neither cause nor prevent. This is perfect externality — the act of the sovereign in the strict sense
• Unforeseeability: at signing in August 2020, neither A.B.S. nor S.L. could anticipate that a new plan would trace a regional road precisely across the land chosen for the petrol station. The unforeseeable character is expressly qualified by the court
• Insurmountability (irresistibility): 4 years of unsuccessful applications constitute the material proof of impossibility. The final refusal of 04/06/2024 closes the door — no recourse, no adjustment, no procedure can bring the authorization back to life

This last condition is in practice the most contested. Many administrative obstacles can be overcome through recourse, project modifications, negotiations. A refusal based on incompatibility with a new development plan (rather than a flaw in the application) is, by contrast, structural — the road alignment would have to be dropped for the permit to return, which is not within the parties' control.

3. The contractual lesson for property operators

The ruling offers an implicit how-to for drafting development contracts, conditional sales, and sale promises conditioned on a permit. A few key points:

• Stipulate implicit rescission in the event authorization becomes impossible — without prior formal notice. The court validates this clause here
• Frame the qualification: is the obligation to obtain the permit one of means or of result? By default in Morocco, it is of result. If you want it to be of means, say so expressly
• Set the reasonable duration beyond which rescission is automatic (12, 18, 24 months). Without a cap, the situation can drag on indefinitely
• Provide for the allocation of costs incurred in the event of force majeure: each keeps its own costs, or a symbolic compensation. Here the court awards nothing to the party claiming damages
• Distinguish a permit refusal for a flaw in the application (debtor's liability) from a refusal for later regulatory incompatibility (force majeure)

4. Reading it alongside the Casablanca ruling of 13/02/2019 — the landlord nuance

This 2024 ruling should be read in parallel with the one from the same Casablanca Commercial Court of Appeal dated 13 February 2019 (No. 567): a development plan is not force majeure for the landlord bound to pay an eviction indemnity. The distinction is subtle but crucial: the mere publication of a development plan is not enough — you need a final authorization refusal, proven, based specifically on incompatibility. A theoretical public-utility declaration is not the same thing as a documented administrative refusal.

De-risk your operation with our independent RICS appraisal service and browse more analyses on the ReaConsult blog.