New changes in the spread of the epidemic may also trigger new changes in the application of "force majeure" claims. Initially, Chinese companies claimed to apply "force majeure" because they were unable to produce and deliver goods in time, and began to shift to buyers from countries where the epidemic occurred to use the outbreak as a reason. Refusal to accept goods, refuse to pay payment, etc. due to citing force majeure laws or contract terms. Most U.S. states do not consider epidemics or emergencies to be force majeure.

Determination of whether force majeure is applicable

1. Situations in which the buyer may claim force majeure

Limited government ban on the entry of Chinese goods promulgated by the country (region) where the buyer is located It may constitute force majeure for the buyer to perform the contract, but certain conditions must still be met, including whether the trade terms stipulate that the risk transfers after the buyer receives the goods; whether the government ban has been issued or implemented when the contract was signed, and the buyer could not reasonably foresee the situation when signing the contract. The national government may take control measures; whether the buyer itself is at fault for the control measures that affect the performance of the contract, etc.

2. Situations in which the buyer cannot claim force majeure

In some cases, the limit buyer’s claim to refuse to pay the payment or refuse to accept the goods on the grounds of the COVID-19 epidemic cannot be established:

Under CIF and FOB contracts, the risk of the goods is transferred to the buyer when the goods are shipped on board. At this time, the control measures taken by the buyer's country (region) have nothing to do with the seller;

The COVID-19 epidemic may cause The customs inspection and quarantine policy in the country where the foreign buyer is located may be upgraded and a 14-day quarantine measure may be required. At this time, despite changes in government policies, as long as the country does not prohibit the entry of materials from China, the buyer cannot refuse to accept the goods because of this.

In addition, the COVID-19 epidemic may also lead to a significant drop in market demand for materials originating from China, with foreign buyers refusing to accept goods due to commercial risk considerations. At this time, the commercial risk (poor sales) does not substantially prevent the limit buyer from continuing to perform the contract, so its reasons for refusing to pay or refuse to receive the goods cannot be established.

After the buyer receives the goods, his main obligation under international trade is to pay the price. The obligation to pay for goods is a monetary obligation. Monetary obligations can be fulfilled through transfers, remittances, checks, money orders, cashier's checks, cash, etc. The buyer mainly fulfills its payment obligations through the bank settlement system. If the COVID-19 epidemic does not paralyze the country's international business It is difficult to establish the reason why the foreign buyer refuses to pay if it cannot fulfill its payment obligations. Therefore, force majeure exemption clauses generally do not apply to financial obligations.

The epidemic may in some cases affect the time for the buyer to fulfill its obligation to pay money. For example, the buyer is quarantined for observation or treatment due to the new crown epidemic, and is unable to handle payment by himself or by entrusting others to handle the payment. At this time, the buyer may claim to be exempted from liability for delayed performance of debts due to the impact of force majeure, but shall perform its payment obligations within a reasonable period after the impact of force majeure is eliminated or weakened.