Публикация посвящена понятию “форс-мажор” и форс-мажорным оговоркам. Автор приводит этимологию термина “форс-мажор”, исследует некоторые виды и природу форс-мажора в английском праве, а также разбирает содержание форс-мажорной оговорки.
Force majeure translates literally from the French as “superior force”. In contractual terms, it is recognised as the occurrence of an unexpected event or events beyond the control of either contracting party which disrupts the operation of the contract such that the contracting parties are excused from their liabilities and/or obligations under the contract. It is, however, not intended to excuse any negligence or malfeasance. It can also suspend the performance of an obligation or extend the time to perform the same.
Force majeure is only recognised in English law if there is a clause in the contract dealing with it or a reference to it in the contract. This is different from civil law jurisdictions, where force majeure can apply regardless.
The purpose and effect of a force majeure clause is to define, as precisely as possible, the circumstances under which a contracting party is released from beyond the control of the contracting parties;
(ii) Unpredictability: the event/circumstance cannot be expected, anticipated or foreseeable;
(iii) Irresistibility: the event/circumstance is unavoidable.
Historically, force majeure events were recognised as forces of nature or acts of God. However, the clause can be and has been expanded to include events that are industry- or transaction-specific. Certain events created by extraneous human intervention can also fall into the category offorce majeure.
Examples of such events include fire, flood, earthquake, storm, hurricane and other natural disasters; war, invasion, act of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, and terrorist activities; nationalisation, government sanction, blockage, embargo, labour dispute, strike and lock-out; or interruption or failure of electricity or telephone service.
In the event that there is only a reference in the contract. to force majeure – for example, ‘force majeure excepted”, what constitutes/orce majeure is then determined on a case-by-case basis. This would include an “act of God”/”forces of nature” event, but can also extend to extraneous human interventions.
The burden of proof rests on the party relying upon force majeure. The party must show that the occurrence of the event falls under the force majeure
clause or constitutes a. force majeure event, such that the party was wholly or partially prevented from performing the contract. The party has to show that the performance of the contract was adversely affected by the force majeure event and that such an event and/or non-performance was beyond its control and that there were no reasonable or proportionally reasonable steps to be taken to avoid the event and/or its consequences.
Parties can also agree to impose additional conditions before the force majeure clause can be invoked. This includes requiring notice before invocation to allow the other party either to try to mitigate or reduce any foreseeable losses or reserve its rights, or placing an obligation on the invoking party to mitigate the effects of the force majeure by taking reasonable steps to limit or prevent the loss.
Drafting force majeure clauses
The following points should be considered.
(i) Is a force majeure clause necessary to protect yourself in your contractual relations?
(ii) What might constitute a force majeure event that would be relevant to your contractual relations and should be included in the clause, above and beyond the standard events?
(iii) Is the clause intended to cover only events where there is no party at fault?
(iv) What are the conditions, if any, to be included in the clause – notice, mitigation, suspension of performance, extension of time for performance, etc? (v) What is the intended effect of the clause? What to do in the event that you think the force majeure event/clause may apply?
(i) Consider the contractual position in relation to applicable law and jurisdiction. As set out above, the position in the UK is different from civil law jurisdictions.
(ii) Consider the scope of all the clauses, including whether there is a specific force majeure clause and what the scope of the clause is, and also any other clause which may have the effect of extending or limiting the scope of a force majeure clause/event,
(iii) Consider whether the three tests outlined above are satisfied to determine whether the event being relied upon indeed falls under the ambit of being a force majeure event.
(iv) Consider all the facts to determine that you meet all the conditions that may be required to be met before the force majeure clause is invoked.
(v) Consider whether you can take any steps to mitigate the loss that may follow from the force majeure event.
Автор: Juanita May Low
Источник: Container Management. – 2012. – April/May. – P. 38 – 39.