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Force Majeure

Translated from the French "force majeur" means a higher power. In the Russian legislation, this concept is consistent with international law.

The concept of force majeure appeared in the contract for a reason. It is very difficult to foresee all possible cataclysms, to provide for an earthquake, tsunami, meteorite fall or default in the contract. To this end, the law provides for a condition that allows the parties to cancel, terminate the contract concluded before the occurrence of force majeure, or to receive exemption from responsibility for its improper performance (non-fulfillment).

It should be borne in mind that these insurmountable circumstances allow only to avoid responsibility, but do not remove the basic responsibilities for the implementation of the treaty. In other words, the party that has overdue the performance of the contract is obliged to fulfill the obligations, but it is exempt from payment of penalties, fines or penalties, which are stipulated in the contract or law.

The Civil Code clarifies force majeure or force majeure. According to the articles of law, an irresistible force is an extraordinary and unavoidable circumstance that has arisen under the given conditions. From this definition it follows that in case of force majeure, there must be elements such as unavoidability and extremeity.

In the law there is no complete list defining force majeure circumstances. In different specific cases, they can be their own. For example, the shipper and the carrier are exempt from liability if the non-use or non-delivery of the vehicle has occurred due to force majeure or other natural phenomena (fire, flood, drift), as well as military actions. It turns out that according to the law for transportation contracts different concepts are defined: military actions, natural phenomena, irresistible force. However, judicial practice shows that military actions are often referred to as force majeure as well as spontaneous phenomena.

By law, force majeure circumstances must meet the following criteria. First of all, they must be unforeseen. It follows that if either party foresaw the onset of a particular event, then this circumstance can not be considered force majeure. To this event can not be attributed the difficult financial situation of one or even several related businesses. But global economic crisis phenomena can be recognized as circumstances of force majeure. Most often, the economic crisis is recognized in the form of force majeure in international law. In Russia, courts are wary of various economic changes.

Force majeure circumstances should be extraordinary undesirable for both parties. This means that at the conclusion of the contract, the parties want to fully fulfill their obligations and do not want force majeure and other circumstances. However, it is very difficult to determine the interest in force majeure. It is clear that the owner of the insured property, which is not sold for a long time, can be beneficial if the property is destroyed, at least with the help of a meteorite. However, it is very difficult to find out thoroughly whether the insurer had an interest in the event of force majeure.

Unavailability indicates that the parties are unable to prevent force majeure caused by force majeure.

The circumstances that took place during ordinary economic activity can not be considered force majeure. Only exceptional, completely objective, directly independent of the will of the parties, circumstances are considered as force majeure.

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