The so-called force majeure, In my country's "General Principles of Civil Law" it refers to "objective circumstances that cannot be foreseen, unavoidable and insurmountable".
Objective circumstances or accidents that cannot be resisted or prevented by the parties themselves. Force majeure can be caused by natural causes or man-made or social factors. The former is like earthquakes, floods, droughts, etc., and the latter is like wars, government bans, strikes, etc. Force majeure is a legal fact. When a force majeure accident occurs, it may lead to the change or elimination of the original economic and legal relationships, such as the need to change or terminate the economic contract; it may also lead to the creation of new economic and legal relationships, such as when a property policy holder encounters damage caused by force majeure. When property is damaged within the scope of insurance, a compensation relationship arises with the insurance company. When a force majeure accident occurs, the party experiencing the accident should take all measures to minimize losses. When signing a sales contract, there is usually a force majeure clause, which includes: the content of the force majeure; the time limit and method for the party that suffers a force majeure accident to submit an accident report and supporting documents to the other party; and the scope of responsibility of the party that suffers a force majeure accident. If the contract cannot be performed due to force majeure, the contract should be terminated. If force majeure only temporarily hinders the performance of the contract, the method of delaying the performance of the contract is generally adopted. If a force majeure accident occurs and the party concerned has tried its best to take remedial measures but still fails to avoid losses, it will not be liable for compensation.
1, force majeure 2, the act of God 3, irresistible force
Force majeure mainly includes the following situations:
(1) Natural disasters, such as Typhoons, floods, hail;
(2) Government actions, such as expropriation and expropriation;
(3) Abnormal social events, such as strikes and riots.
In terms of the application of force majeure, the following issues are worth noting:
(1) Whether a force majeure clause is stipulated in the contract does not affect the direct invocation of legal provisions;
(2) The force majeure clause is a statutory exemption clause. If the force majeure clause is smaller than the statutory scope, the parties may still invoke legal provisions to claim exemption; if it is larger than the statutory scope, the excess part shall be deemed to have established an additional exemption clause;
(3) Force majeure is mandatory as an exemption clause, and the parties shall not agree to exclude force majeure from the reasons for exemption.
3. The exemption effect of force majeure. If the contract cannot be performed due to force majeure, liability shall be partially or completely exempted based on the impact of force majeure. However, there are the following exceptions:
(1) Delay liability for monetary debts shall not be exempted due to force majeure.
(2) Force majeure occurring during the period of delayed performance shall not have the effect of exemption.
4. Force majeure and unexpected events. In fact, neither the General Principles of Civil Law nor the Contract Law include accidental events as a condition for exemption. Therefore, most scholars believe that accidental events should not be used as a reason for exemption.
Refers to objective circumstances that cannot be foreseen, avoided and overcome when the contract is concluded. The following elements must be present to constitute force majeure: A. Unforeseeable contingency. The event referred to by force majeure must be an event that was unforeseen by the parties when the contract was concluded, and its occurrence after the conclusion of the contract is purely accidental. Of course, such unexpected accidental events are not completely unimaginable by the parties involved, and some accidental events are not completely unforeseen by the parties concerned. However, because the probability of its occurrence is extremely small, it is ignored by the parties and excluded from normal circumstances. However, as a result, such an accident does occur, and this type of event is still an unforeseen event. Under normal circumstances, there are two different standards for judging whether a party can foresee the occurrence of a certain event: one is the objective standard, that is, if a reasonable person can foresee it under certain specific circumstances, the parties to the contract will should be anticipated. If the foreseeing of such an event requires certain specialized knowledge, then the parties to the contract should foresee the event as long as it can be foreseen by a person with a normal level of such professional knowledge.
The second is the subjective standard, which is to judge whether the parties to the contract should have foreseen it under certain specific circumstances based on the subjective conditions of the actor, such as the age, development status, knowledge level, professional status, education level, comprehensive ability and other factors of the parties. . B. Uncontrollable objectivity. A force majeure event must be caused by objective reasons beyond the control of the debtor. The debtor has neither intention nor fault for the occurrence of the event, nor can it subjectively prevent it from happening. If the debtor can overcome an event that is not caused by reasons that are attributable to him/herself, he must work hard to overcome it through subjective efforts, otherwise it will not be enough to relieve his debts.
The unpredictability and contingency of force majeure events determine that it is impossible to enumerate all its extensions and exhaust the various accidental events that may occur to humans and nature. Therefore, although all countries in the world recognize that force majeure can be exempted from exemption, no country can accurately define the scope of force majeure. Moreover, due to different customs and legal consciousness, countries have different understandings of the scope of force majeure. According to my country's practice, international trade practices and the interpretation of relevant laws in most countries, the scope of force majeure events mainly consists of two parts: first, natural phenomena caused by natural causes, such as fires, droughts, earthquakes, wind disasters, heavy snow, landslides, etc.; The second is social phenomena caused by social reasons, such as war, unrest, government intervention, strikes, embargoes, market conditions, etc. Generally speaking, all countries regard natural phenomena, wars, and serious unrest as force majeure events. However, man-made obstacles other than the above-mentioned events, such as government intervention, non-issuance of permits, strikes, violent market fluctuations, and government Events classified as force majeure such as bans, embargoes and government actions often cause controversy. Therefore, the parties should specifically agree on the scope of force majeure when signing a contract. In fact, all countries allow the parties to stipulate the scope of force majeure when signing a contract. Customizing the scope of force majeure is actually equivalent to customizing the exemption clause. There are generally three ways for the parties to enter into such clauses: one is the general form. That is, the contract only stipulates the meaning of force majeure events in general terms and does not specifically list the events that may occur. If the objective circumstances change after the contract is signed and both parties dispute its meaning, the arbitration agency or court that accepts the case will interpret whether the objective circumstances constitute force majeure based on the meaning of the contract; the other is the enumeration method. That is, the events that are force majeure are listed one by one in the contract. Any occurrence of the listed events will constitute force majeure. Any occurrence of events not listed in the contract will not constitute a force majeure event. The third type is comprehensive, that is, in The contract not only outlines the specific meaning of force majeure, but also lists events that fall within the scope of force majeure.
A force majeure clause is an exemption clause that exempts a party that breaches the contract due to a force majeure event from liability for breach of contract. Generally, the content that should be stipulated includes: the scope of the force majeure event, the time limit for notifying the other party after the event occurs, the agency that issues certification documents, and the consequences of the force majeure event.
The force majeure clauses in my country's import and export contracts mainly include the following three methods according to the different scope of force majeure events:
General form, that is, a general reminder of force majeure events. , such as "The party that is unable to perform the contract or delays the performance of the contract due to force majeure may not be liable for breach of contract. However, the party shall immediately notify the other party by telex or fax, and provide the other party with China International Trade Promotion by registered airmail within XX days Certificate issued by the committee.
Enumeration type, that is, specifying the types of force majeure events one by one. For example, "the party who is unable to perform the contract or delays the performance of the contract due to war, earthquake, flood, fire, or snowstorm." shall not be liable for breach of contract...".
Comprehensive form, that is, combining general and enumerated forms, such as "Due to war, earthquake, flood, fire, snowstorm or other force majeure reasons The party that cannot perform the contract shall not be liable for breach of contract...". Comprehensive method is the most commonly used method.
After the buyer and seller sign the contract, some unexpected events sometimes occur that affect the contract. In order to avoid unnecessary conflicts, both parties should enter into a force majeure clause in the contract.
1. The meaning of force majeure
What is force majeure (Force Majeure)? Different countries have different interpretations. Be consistent.
According to Chinese law, force majeure refers to objective circumstances that cannot be foreseen, avoided and overcome. According to the United Nations Convention on Contracts for the International Sale of Goods, it refers to circumstances beyond the control of the party and which there is no reason to expect that it could take into account or avoid or overcome it or its consequences when making the contract, making it unable to perform its contractual obligations. obstacle. Accordingly, force majeure refers to something that occurs after the establishment of the contract and is not caused by the intention or negligence of one of the parties. Its occurrence and consequences cannot be foreseen, controlled, avoided and overcome by the parties.
There are two causes of force majeure: one is natural causes, such as disasters and accidents caused by natural forces beyond human control such as floods, storms, earthquakes, droughts, blizzards, etc.; the other is social causes, such as Caused by wars, strikes, government bans, etc. In practice, the identification of force majeure is very strict and must be distinguished from normal trade risks such as commodity price fluctuations and exchange rate changes.
2. Force majeure clauses in international sales contracts for goods
Force majeure clauses refer to the sales contract that stipulates that if one party is unable to perform all or part of its obligations under the contract due to force majeure, it shall be exempted from all its obligations. or partial performance liability, the other party shall not claim damages for this. Therefore, a force majeure clause is an exemption clause.
The force majeure clause in the international sale of goods contract mainly stipulates: the scope of force majeure, the principles and methods for handling force majeure, the time limit and method for notifying the other party after the occurrence of force majeure, and the institution that issues certification documents, etc.
(1) Scope of force majeure
There is no unified international interpretation of the scope of force majeure, and the parties can decide on their own when entering into the contract. Generally, there are three stipulation methods: generalized, enumerated and comprehensive. The general type only provides general provisions on the scope of force majeure; the enumerated type lists the force majeure events one by one; the comprehensive type, that is, the enumerated type is combined with the comprehensive type to provide force majeure events that may often occur (such as wars, earthquakes, floods, fires, storms, etc.) , snow disaster, etc.), add the words "and other force majeure events agreed by both parties". A comprehensive stipulation method is both clear and specific and has a certain degree of flexibility. At present, in our import and export trade contracts, comprehensive contracts are generally adopted.
(2) Handling of force majeure
After a force majeure accident occurs, it should be handled in a timely manner according to the agreed handling principles. There are two consequences of force majeure: one is to terminate the contract, and the other is to postpone the performance of the contract. How to handle it should depend on the cause, nature, scale of the accident and its actual impact on the performance of the contract.
(3) Notification and certification of force majeure
Chinese law stipulates that when force majeure occurs, one party must promptly notify the other party and obtain the right of exemption because it cannot perform the contract as required. Provide necessary supporting documents within a reasonable time to mitigate possible losses to the other party. According to the United Nations Convention on Contracts for the International Sale of Goods, if one party fails to notify the other party in time and causes damage to the other party, he shall still be liable for compensation. In practice, in order to prevent disputes from occurring, the force majeure clause should clearly stipulate the specific time limit and method for notification and submission of supporting documents.
As for the force majeure issuing agency, in our country, it is generally issued by the China Council for the Promotion of International Trade (China Chamber of International Commerce); if it is provided by the other party, it is mostly issued by the local chamber of commerce or a registered notary agency. issued. After the other party receives the force majeure notice and supporting documents, it should respond promptly regardless of whether it agrees or not.
1) The other party must be notified in a timely manner and the necessary supporting documents must be provided within a reasonable time to mitigate the losses that may be caused to the other party. According to the United Nations Convention on Contracts for the International Sale of Goods, if one party fails to notify the other party in time and causes damage to the other party, he shall still be liable for compensation.
2) It is best to clearly specify the specific time limit and method for notification and submission of supporting documents in the force majeure clause.
3) After receiving the force majeure notice and supporting documents, you should respond promptly regardless of whether you agree or not.