Irresistible force in the legislation of the Russian Federation: concept, signs, branch specificity

An irresistible force in Russian legislation is disclosed as unavoidable circumstances of an emergency nature that could not be foreseen by the participants in the transaction and led to the default of the contract. Suddenly emerged environmental factors, falling under the definition, lead to the release of the contracting party from compensation for losses to the injured opponent.

An irresistible force in civil law is disclosed in the form of signs, essential features and criteria that indicate these circumstances. This method of fixing can not be estimated unambiguously. On the one hand, in fact, the descriptive nature of the definition is the need to prove or challenge the ability to characterize each specific emergency event that led to non-fulfillment of the contract, as a force majeure in court.

On the other hand, by fixing the list of factors, the onset of which entails the release of one of the parties from liability, the legislator risks depriving the protection of the subjects of law in the event of an unintended list, but actually falling under the definition of emergency situations.

Despite the absence of the mentioned list in the law, the legal practice shows more certain regularities, according to which an insuperable force takes place in the following situations:

• A natural phenomenon (for example, an earthquake, a flood, a fire, etc.);
• Sociogenic factors: epidemics, strikes, terrorist attacks, military actions;
• Publication of legislative acts by authorized persons, entailing loss of the possibility of one of the parties to the agreement to partially or fully prevent losses of another party to the transaction (quarantine, restriction of transportation);
• Prohibitive acts of authorities (for example, closing the border).

The Civil Code of the Russian Federation also contains a list of factors that can not be attributed to the circumstances of force majeure. It includes the misconduct of counterparties of the debtor or the lack of the latter in the amount necessary to fulfill the obligations under the contract, as well as the lack of the required type of goods on the market. In addition, the analysis of judicial practice shows that the described type of circumstances does not include the bankruptcy of a legal entity. Thus, if the factor related to entrepreneurial risk is the cause of the failure to fulfill the obligations under the contract , the guilty person is liable.

An irresistible force entails various consequences depending on the branch of legislation governing the relations affected by extraordinary circumstances.

So, for example, in the labor law in the event of an unforeseen situation of this kind, an employee in whose actions there were no violations of instructions that could not reasonably prevent the onset of disastrous consequences within the framework of official powers is exempt from liability.

The irresistible force of circumstances in the tax sphere leads to the removal from the subject of guilt for the commission of a tax offense.