Force majeure in contracts of individual entrepreneurs. Force majeure

Kosikhin Dmitry Yurievich,
head of legal department
expert and consulting department of the company PRAVOVEST

In Russian law, another concept is used - force majeure. In accordance with Part 3 of Article 401 of the Civil Code of the Russian Federation, a person who has not fulfilled or improperly fulfilled an obligation in the course of entrepreneurial activity shall be liable, unless he proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. Thus, the presence of force majeure can exempt from civil liability.

However, the use of the concept of "force majeure" is not limited only to the framework of civil law contracts. In labor law, such circumstances preclude bringing the employee to liability for damage caused, and in tax law they are grounds that exclude the guilt of a person in committing a tax offense.

A slightly different function is performed by force majeure circumstances when concluding a state or municipal contract. In critical situations, when there is a need for certain goods, works, services due to force majeure, the law allows you to neglect bidding and requesting quotations.

Legislative acts do not contain an exhaustive list of circumstances or phenomena that relate to force majeure circumstances. This is quite understandable, given the variety of possible accidents. At the same time, Article 401 of the Civil Code of the Russian Federation cites some particular situations that cannot be attributed to such circumstances.

For example:

– violation of obligations by counterparties of the debtor;

- lack of goods needed for execution on the market;

- the debtor does not have the necessary funds.

Thus, the legislator delimits cases where the reason for non-fulfillment of an obligation lies within the framework of entrepreneurial risk. Judicial practice supplements this list with the bankruptcy of a legal entity.

However, the courts of all instances agree that the action of the destructive forces of nature, the elements is unconditionally recognized as an irresistible force.

In general, force majeure circumstances can be characterized by the following features.

1. The extraordinary nature of the phenomenon

It is expressed in the atypicality and uncharacteristic nature of the phenomenon, event or its consequences for the party fulfilling obligations. It is important that the same event, depending on the time and place of manifestation, may be recognized as force majeure, or may not be recognized. Let us illustrate this with the example of such a common phenomenon for our country as low temperatures.

The case was considered on the recovery of payment for the use of electricity in excess of the norm established by the contract. The defendant justified the excess consumption by a sharp drop in temperature in the winter. The court rejected this argument, pointing out in the decision that a sharp drop in the temperature of the outside air in winter does not apply to natural phenomena of a spontaneous nature, and therefore cannot be considered as an unstoppable force.

In another dispute on the recovery of penalties for excessive demurrage of wagons, the defendant also referred to the abnormally low temperature (from -38 to -51 ° C) as an insurmountable force. Under such conditions, the operation of crane equipment was impossible, which, in turn, led to a delay in unloading the cars, which is why the respondent did not remove them from the access road in a timely manner. The court ruled in favor of the defendant, considering these circumstances sufficient for exemption from the application of penalties. That is, the urgency of an event is established only taking into account specific events and consequences for the parties.

2. unavoidability

The phenomenon related to force majeure may be known, but inevitable. That is, it can be foreseen or reliably known about its approach, but it is impossible to prevent both the event itself and its consequences on its own. A classic example is when the captain of a ship receives a message that a sea storm is approaching, but it is impossible to avoid meeting it due to the lack of prepared harbors within reach.

This sign is most ambiguously perceived and applied when the fulfillment of obligations has become impossible due to a strike. If a strike occurs on one of the sides, there is no need to talk about inevitability. But if, say, workers in the transport industry are on strike, it seems unlikely to foresee such a development of events, and even more so to prevent it. Judicial practice on this issue is also ambiguous.

In one case, the Federal Antimonopoly Service of the North-Western District indicated that a breach of obligations by a counterparty due to a strike by a transport organization does not apply to emergency and unavoidable circumstances that relieve a person in his business from liability for failure to fulfill an obligation.

The same court, considering the cassation appeal of the organization that violated the regime of temporary importation of equipment into the customs territory of the Russian Federation due to the strike of Polish farmers, noted that in accordance with Article 79 of the UN Convention on Contracts for the International Sale of Goods (Vienna, April 11, 1980), the party did not is liable for the failure to perform any of its obligations if it proves that it is caused by an obstacle beyond its control and that it could not reasonably be expected to take this obstacle into account in concluding the contract or to avoid or overcome this obstacle or its consequences. Taking into account the provisions of Article 430 of the Civil Code of the Russian Federation, the court concluded that such circumstances (events) could include natural disasters and social phenomena, for example, industrial strikes that have signs of emergency and inevitability, that is, not dependent on the will of people.

3 .Unforeseeable force majeure circumstances at the conclusion of the contract

Circumstances that occurred after the signing of the contract, which are the result of an exceptional event, which at the time of signing the contract could not be foreseen with a certain degree of certainty by the party concerned.

4. Causal relationship between the cataclysms that occurred and the non-fulfillment of the contract

The case considered by the Federal Antimonopoly Service of the North Caucasus District is noteworthy. A trading house (seller) and a peasant farm represented by an individual entrepreneur (buyer) entered into a contract for the sale of plant protection products. In the contract, the parties have established that in the event of force majeure circumstances affecting the fulfillment of obligations, the deadline for fulfilling these obligations is proportionally postponed for the duration of force majeure. The seller has fulfilled its obligations under the transaction. The buyer did not pay for the goods within the period specified in the contract. The buyer did not agree with the decisions of the courts of the first and appellate instances on the recovery of debts and penalties. In his cassation complaint, he pointed out that when resolving the case, it was necessary to take into account the specifics and type of his activity. Namely, that the only source of his income is the sale of sugar beets. The buyer attributed the failure to pay for the goods delivered under the contract to the loss of the crop as a result of drought, which is a force majeure event under the contract. Therefore, according to the entrepreneur, we should talk about deferring payment for goods and not charging penalties.

However, the court did not agree with this and indicated that the buyer is obliged to make payment immediately before or after the seller transfers the goods to him, unless otherwise provided by law or the contract and does not follow from the essence of the obligation. In this case, the goods were transferred by the seller, but the buyer did not pay for it.

The judges drew attention to the fact that the unfavorable weather conditions referred to by the buyer are not a force majeure circumstance on the basis of which the merchant would be released from liability to the seller. After all, the latter collects a penalty for non-fulfillment of a monetary obligation, and not an obligation to supply beets that died as a result of a drought.

In another case, the air carrier organization managed to defend its interests in court when considering a claim related to the collection of a fine for canceling flights. The reason for the cancellation was the tsunami that hit the coast of Thailand. Despite the fact that Thailand's airports were not affected, the news of the disaster was followed by a drop in demand for air tickets due to numerous destruction and epidemics in the state, which led to the cancellation of flights. The court considered that the actions of the air carrier were caused by force majeure and excluded its liability.

Concluding the consideration of signs of force majeure circumstances, it should be noted that such phenomena are lasting or transient. According to the consequences for the parties to the transaction, they can lead either to complete or temporary impossibility of fulfilling the contract. The temporary nature of the phenomenon and its consequences requires the parties to determine the period during which the performance of the contract is of mutual interest. This period can be determined both at the conclusion of the contract, and during subsequent negotiations between them.

Based on the above signs, the following types of force majeure circumstances can be distinguished and conditionally classified:

- natural phenomena (earthquake, typhoon, storm, flood, tidal waves, drought, frost, landslides, epidemics, etc.);

- armed conflicts (military operations of any kind, hostilities, uprisings, civil unrest, coup d'état, mobilization);

- labor conflicts (strike, lockout (that is, employees at the initiative of the employer in connection with a collective labor dispute and a strike, as well as the liquidation or reorganization of an organization, branch, representative office) or other similar actions);

- transport difficulties (impossibility of using the railway, air, sea and river transport, roads; shortage of wagons; interruption or delay in the provision of vehicles);

– actions of the authorities (prohibition of exports or imports; decrees or decrees of the government; acts of the government or any government agencies).

The position of the Federal Antimonopoly Service of the Moscow District on one of the cases is interesting. The Court, relying on global practice, cited the following qualification of force majeure circumstances: “In the field of entrepreneurial activity, the circumstance exempting from liability is only the impact of force majeure: natural phenomena (earthquake, flood), certain prohibitive measures of the state, as well as circumstances of public life: hostilities, epidemics, large-scale strikes, and so on, that is, such phenomena, the impact of which comes from outside and is unavoidable.

Please note that the inclusion of the order of the authorities in the list of force majeure circumstances does not find support in the courts due to the artificiality of such an approach. On this occasion, a large number of decisions of arbitration courts were issued, denying the extraordinary and unavoidable nature of the acts of the authorities.

For example, Alfa LLC applied to the Moscow Arbitration Court with a claim against Betta LLC for the recovery of debt under a supply agreement. The defendant asked to dismiss the claim, referring to the fact that he was not able to pay for the goods in full due to the suspension of his license for the right to purchase, store and supply alcoholic products.

The court rejected the defendant's arguments, since a person who has not fulfilled or improperly fulfilled an obligation in the course of business activities shall be liable unless he proves that proper fulfillment was impossible due to force majeure. Of course, unless otherwise provided by law or contract. The defendant did not prove the impossibility of fulfilling obligations under the contract.

And of course, acts of individual application (in particular, decisions of the tax authority based on the results of an audit) that establish certain restrictions, prohibitions, and arrests cannot be considered force majeure. After all, they are caused by the behavior of the person in respect of whom they are issued.

What is included in the contract?

So, should force majeure clauses be included in the contract? Definitely yes. This is especially true for foreign trade contracts. In different countries, the concept of force majeure is used in different meanings, and perhaps, unlike Russian law, it may not be disclosed at all. In this case, when considering a dispute, international arbitration will appeal to the provisions of the agreement.

Therefore, in the text of the contract, it is important to precisely define the concept of force majeure (force majeure) and indicate a list of phenomena that may serve as a basis for releasing one of the parties from liability for failure to fulfill an obligation. Should this list be open or exhaustive? There is no clear answer either in the legal literature or in judicial arbitration practice.

In any case, the parties do not have the right, at their discretion, to classify certain circumstances as force majeure. Guidelines for classifying a particular phenomenon as force majeure will be the criteria established by law.

Example

1. A party is released from liability for non-performance if it proves that the non-performance was caused by an impediment beyond its control and that it could not reasonably be expected to take this impediment into account when entering into the contract or to avoid or overcome this impediment or its consequences.

2. If the impediment is temporary, the release from liability is valid for a period of time that is reasonable, taking into account the impact of the impediment on the performance of the contract.

In relation to contracts concluded between Russian organizations and executed on the territory of the Russian Federation, the inclusion of a detailed description of force majeure options seems inappropriate. It is quite enough to fix the exemption from liability due to force majeure with reference to paragraph 3 of Article 401 of the Civil Code of the Russian Federation. If force majeure circumstances are included in the text of the contract, then only those that are specific and characteristic of these legal relations of the parties. Then there is a possibility that the court will take into account the provisions of the contract when considering the dispute.

Thus, the court recognized as force majeure the conditions enshrined in the contract on exemption from property liability upon termination of financing of an object being built at the expense of centralized capital investments and funds from the federal, regional and municipal budgets. The reason for this decision was that this circumstance was designated as force majeure in the text of the contract.

No less important for a foreign trade contract and for a domestic Russian contract is the description (specification) of the actions taken by the parties in the event of force majeure circumstances. It is necessary to determine what consequences such circumstances lead to: to the termination or postponement of the execution of the contract. In addition, provide for the obligation of the party that is unable to fulfill its obligations under the contract to notify the other party of force majeure.

This obligation directly follows from the principle of good faith of the parties under the contract, and is also enshrined in a number of regulatory legal acts as a necessary condition for exemption from liability in the situation under consideration. As Article 79, paragraph 4, of the previously mentioned UN Convention states, “The party that fails to perform its obligation must give notice to the other party of the impediment and its effect on its ability to perform. If this notice is not received by the other party within a reasonable time after the impediment became or should have become known to the defaulting party, that latter party shall be liable for damages resulting from the failure to receive such notice.”

Example

In the event of such circumstances, the deadline for fulfilling obligations under this contract is postponed in proportion to the duration of these circumstances, since these circumstances significantly affect the fulfillment of this contract on time.

The party for which the proper performance of obligations was impossible due to the occurrence of force majeure circumstances is obliged, within 5 (five) calendar days from the date of occurrence of such circumstances, to notify the other party in writing of their occurrence, type and possible duration of action.

If these circumstances continue for more than 2 calendar months from the date of the relevant notification, each of the parties has the right to terminate this contract without claiming compensation for losses incurred due to the occurrence of such circumstances.

In addition to notification of the occurrence of force majeure, evidence of this fact must also be submitted. For this, it is customary to use the conclusions of state authorities and chambers of commerce and industry of the corresponding region. So, you can send a request to the hydrometeorological service, which provides information on the state of the environment, its pollution, and natural hazards. The Federal Service for Hydrometeorology and Environmental Monitoring of the Russian Federation maintains the Unified State Data Fund on the state of the environment, the information in which is open and publicly available.

According to the tax service and the Ministry of Finance, a document confirming the onset of force majeure should be issued by the Ministry of Emergency Situations. The arbitrators also agree with this opinion.

Tax "force majeure"

As noted earlier, a natural disaster or other extraordinary and insurmountable circumstances can also relieve you of liability for committing a tax offense.

Original source:“Circumstances excluding the guilt of a person in committing a tax offense are recognized:
1) the commission of an act containing signs of a tax offense due to a natural disaster or other emergency and insurmountable circumstances (these circumstances are established by the presence of well-known facts, publications in the media and in other ways that do not require special means of proof)”.
Tax Code of the Russian Federation (clause 1, article 111)

As you can see, the norms of tax legislation are very similar to those of civil law. Like Article 403 of the Civil Code of the Russian Federation, Article 111 of the Tax Code of the Russian Federation does not contain an exhaustive list of circumstances excluding the guilt of a person in committing a tax offense. It is only indicated that such circumstances must simultaneously meet 2 criteria: emergency and insurmountability. True, there is an indication of one of the types of such circumstances - natural disasters.

For reference. A natural disaster is an event (legal fact) beyond human influence, an extraordinary circumstance resulting from the action of the forces of nature (flood, earthquake, snow drift, etc.); one of the types of force majeure.

Natural disasters are also relative when assessing their impact on the ability of a taxpayer to properly fulfill its tax obligations. With regard to some conditions, the circumstance is indeed extraordinary and insurmountable, while in others it cannot be recognized as such. For example, frequent floods in St. Petersburg can cause damage or destruction of accounting documents and tax records of an organization whose office is located on the ground floor. But the reference to the flood for a taxpayer who has an office on the upper floors is justified only if it is about late submission of accounting and tax reporting to the tax authority due to the limited ability to send such a report. It is hardly appropriate to talk about any damage or destruction of documents here. Any other emergency is considered from similar positions.

Subparagraph 1 of paragraph 1 of Article 111 of the Tax Code of the Russian Federation, in contrast to the norms of civil law, defines another criterion for emergency and insurmountable circumstances: they are established by the presence of well-known facts, publications in the media and in other ways that do not require special means of proof. It seems that publications in the media and the presence of well-known facts can be confirmed primarily by natural disasters, that is, circumstances of a large-scale nature.

If we consider extraordinary and insurmountable circumstances that affected one person (several persons), let's say a fire in a separate room, flooding as a result of a leak in the heating system, etc., then one can hardly count on general knowledge or publications in the media. Confirmation will be documents issued by authorized state authorities and other organizations, in particular certificates:

- law enforcement agencies (for example, a certificate from the preliminary investigation or inquiry about the theft, robbery, robbery, criminal destruction of property, etc.);

- traffic police authorities (about the traffic accident that occurred);

– State Fire Service (on fire, ignition, damage caused by fire and actions to localize and eliminate it);

- housing maintenance or other organizations that manage buildings and maintain them (about the fact of flooding).
The facts and circumstances set forth in the listed documents do not need special means of proof and therefore comply with the requirement provided for by subparagraph 1 of paragraph 1 of Article 111 of the Tax Code of the Russian Federation.

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Force majeure is a certain clause in a separate type of agreement, which provides for circumstances in the event of which each of the parties is released from any liability for non-performance, as well as improper performance of obligations under a specific agreement. According to jurisprudence and business practice, force majeure circumstances must be absolute and objective (universal). At the same time, in this case, objectivity implies the impact of this contractual clause either on all or on a larger number of persons participating in the conclusion of the contract, and not only in relation to the debtor.

Force majeure in the contract

What is force majeure in a contract. Force majeure refers to the so-called "force majeure" conditions. Although they rarely occur in business practice, it is very important for the parties to the contract to define them and provide for the main four points:

1. In case of emergency, namely: military operations, natural disasters, strikes, riots, prohibitive and restrictive legislative decisions of state bodies that occurred after the signing of this agreement and prevent the full or partial fulfillment of any obligations under the agreement, the deadline obligations are extended for the duration of such circumstances.

2. The party, for which, due to the above circumstances, it has become impossible to fulfill any obligations under this agreement, is obliged to immediately (no later than 10 days) notify the other party about this.

3. Failure to notify or untimely notification of emergency circumstances that have occurred deprives the relevant party of the right to refer to any of them as a basis for relieving it from liability for failure to fulfill contractual obligations.

4. If emergency circumstances continue to operate for three or more months, either party has the right to cancel the contract in whole or in part, informing its partner of the decision.

In this case, none of the parties is obliged to compensate for possible losses.

In each case, the relations of the parties have their own specifics and peculiarities inherent in certain circumstances. This requires making appropriate adjustments to the model texts of treaties, taking into account the choice of those wordings that are more in the interests of the contracting parties.

Force majeure is a special clause in the contract

Force majeure - is one of the clauses of the contract, providing for certain circumstances, in the event of which the parties will not be liable for failure to fulfill obligations, as well as for unsatisfactory performance under the concluded contract.

Based on judicial as well as business practice, certain force majeure circumstances should only be of an objective and absolute nature. Thus, objectivity at the same time implies the impact of this clause of the contract both on all and on a larger number of persons who took part in the conclusion of this contract.

Lawyer comments:

Force majeure in jurisprudence is unpredictable events that cannot depend on the will of the parties involved in the transaction, but imply the impossibility of fulfilling the contractual obligations of one of the parties. In civil law, force majeure is a legal circumstance for exonerating a party participating in a contract from liability.

Force majeure circumstances release the transaction participant from liability due to non-compliance with contractual obligations, subject to certain conditions - immediate notification of the partner about force majeure and immediate renewal of their obligations upon termination.

As a rule, force majeure is not a basis for a complete release from the performance of obligations by one of the parties to the transaction, more often this action allows you to postpone the deadline for performance or partially fulfill obligations.

It is worth noting that force majeure implies such events as: prohibitive measures of the state, hostilities, natural disasters, revolution, strike, etc., but excludes situations that give rise to commercial risk - price changes, unfavorable market conditions, etc.

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An example of force majeure conditions for a civil law contract

FORCE MAJEURE

1. The Parties are released from liability for non-fulfillment, as well as improper fulfillment of their obligations under the Agreement, if they are caused by force majeure circumstances that occurred after the conclusion of the Agreement and within its framework and which the parties could not have foreseen or prevented by reasonable measures. Under force majeure circumstances for the purposes of this Agreement, the parties mean:

Natural disasters;

strikes;

War activities.

2. If any of the above circumstances directly led to the failure to fulfill obligations within the period established by this Agreement, then this period is proportionally postponed by the approximate time of the existence of force majeure circumstances.

3. The party for which it became impossible to fulfill the obligation under this Agreement due to the occurrence of force majeure circumstances is obliged, within two working days from the moment of their occurrence or termination, to notify the other party in writing by sending a facsimile, mail or other possible message. The Party that has not notified in time about the impossibility of fulfilling its obligations due to the occurrence of force majeure circumstances is deprived of the opportunity to refer to such circumstances and bears the responsibility for non-fulfillment or improper fulfillment of its obligations under this Agreement.

4. Force majeure circumstances must be confirmed by the Chamber of Commerce and Industry (or other authorized body) of the country of the party to the contract for which force majeure circumstances have developed, within 15 days from the date of receipt by the other party of the notification of the occurrence of force majeure circumstances. Failure to receive such confirmation within the period specified in this paragraph deprives the relevant party of the opportunity to refer to such circumstances and entails liability for non-performance or improper performance of its obligations under this Agreement.

5. If the impossibility of full or partial fulfillment of obligations will exist for one party for more than two months, the other party, after the expiration of this period, has the right to terminate the Agreement unilaterally.

6. After the termination of the existence of force majeure circumstances, the contract shall continue under the same conditions, if as a result of force majeure circumstances the essential conditions for the parties to carry out activities under the Agreement have not changed, or the parties have not changed the terms of the Agreement, or the Agreement has not been terminated in the manner specified in clause 4.

7. The Parties are released from liability for non-performance, as well as improper performance of their obligations under the Agreement, if they are caused by circumstances beyond control that occurred after the conclusion of the Agreement and within its framework. Under circumstances beyond control for the purposes of this Agreement, the parties mean circumstances (except for force majeure), the occurrence of which the parties could not foresee and the occurrence of which the parties could not influence, namely: the adoption by the competent authorities of the countries of the parties to this Agreement ), in accordance with which the party - a resident of the state where such a regulatory act (decision) was adopted or a party operating in the territory of such a country and subject to its legislation, is deprived of the opportunity to fulfill fully or partially its obligations under this Agreement. The Parties acknowledge that the legal consequences of the occurrence of circumstances beyond their control are equated to the consequences of force majeure and entail the same mandatory actions of the parties, with the exception of the obligation to obtain confirmation from the Chamber of Commerce and Industry or other authorized body. Such confirmation can be replaced by a copy of the text of the normative act (decision) taken from an official source, indicating the outgoing data of the source.

This article describes the interpretation of force majeure circumstances in Russian civil law. It defines this concept, its types and features. Particular attention is paid to the issue of the difference between force majeure and force majeure circumstances.

In Civil law, the concept of force majeure is used, due to which one of the parties who have assumed obligations under the contract is unable to fulfill all or part of these obligations. It is necessary to understand how they are defined, the order in which they are fixed in contracts, as well as their types and characteristics.

The meaning of the term in Civil law

Force majeure is understood as a certain situation that has developed through no fault of the parties to the contract. It could not have been planned or foreseen. It is impossible to take any measures against this woman, against her impossible to influence.

As a result of this situation, one or both participants contractual relations unable to fulfill their obligations. As a result, there are losses for the opposite or both parties. Consequently, the party that failed to fulfill the obligations is relieved of responsibility.

In the Civil Code, force majeure is mentioned in paragraph 3 of Art. 401 and Art. 202 .

There is a special procedure for fixing such circumstances in contracts. Some situations are ambiguous, which leads to litigation.

Types and signs

There is a classification of the described situations by nature and origin. According to this classification, there are two types of force majeure.

legal variety. This type of situation includes decisions made at the state level, some phenomena of a social nature.

As a rule, potential extraordinary events are prescribed in contracts, which the parties cannot influence. International sanctions, strikes, martial law, quarantines can serve as an example of such a situation.

Objective absolute variety. These circumstances are inevitable, they cannot be predicted.

The consequences of the situation that have arisen affect not only the participants agreements, but also other persons not related to the contract. Some large-scale natural disasters, for example, floods, earthquakes, that is, those objective factors, as a result of which it was objectively impossible to fulfill obligations, can serve as examples of these events.

The party to the agreement that did not fulfill assumed obligations, is obliged to prove in the course of the trial that certain events really prevented the fulfillment of the clauses of the contract, and that the consequences really impossible was to prevent.

According to the classification of force majeure according to the degree of duration, there are two types.

1. Temporary. This view has a time limit of up to 15 days. For example, this type may include a temporary decision of the local administration to block the road, as a result of which one of the counterparties could not deliver the cargo specified in the agreement on time.
2. Constant. This type includes events that last longer than 30 days. An example is a long quarantine in the city, due to which a certain cargo was arrested and was not delivered to one of the parties on time.

There is a practice of specifying the duration of force majeure in contracts. This depends on the nature of the subject of the contract, for example, on the expiration date of the goods or products. Upon the expiration of the force majeure period, the agreement is terminated without liability of the counterparties.

There are several signs of the circumstances under consideration:

Based on the signs listed above, some situations beyond the control of human will are not recognized force majeure, for example:

• seasonal river floods;
• severe frosts at the time and in those areas for which they are characteristic.

Such circumstances can be foreseen and their consequences predicted.

There is a judicial practice in which the same events are recognized or not recognized as force majeure, depending on the reasons that caused them.

For example, a technical accident will not be recognized as force majeure if the fact of a deliberate violation of safety regulations or the use of methods or substances that are prohibited and dangerous for this production is proved.

Force majeure in agreements

All contracts for the provision of certain services, the supply of goods, or the lease most often mention special circumstances that both counterparties recognize force majeure. The contract contains the following information:

Similar situations are prescribed either directly in the agreement itself, or drawn up as an annex to the contract. In this case, the contract must specify the period of time during which this application is considered valid.

Part of the contract containing the conditions for the occurrence force majeure, is its most important component. Due to it, the risk of disputes and conflicts between the parties is minimized.

Distinction from force majeure circumstances

In legal practice, the concept of force majeure and force majeure circumstances are often identified. They are considered together and in the course of litigation. However, it is necessary delimit these terms. They are distinguished on several grounds.

1. The need to define in the contract. Unlike force majeure circumstances, force majeure is those probable situations that the counterparties have agreed to consider special. Their occurrence releases the parties from liability for violation of the clauses of the agreement. Force majeure circumstances do not need to be prescribed in the contract, since they are objectively recognized as such.
2. The need for proof. Force majeure requires proof. Sometimes the court requires an expert opinion of a special commission that examines the relevant documentation and recognizes or does not recognize this or that situation as force majeure. The fact of the occurrence of force majeure circumstances does not need proof.
3. Force majeure is most often related to the action, and force majeure circumstances - to events. The first may arise in connection with the adoption of a resolution by local or federal authorities, or due to non-compliance with certain conditions of counterparties of one of the parties to the agreement.

Force majeure circumstances are certain events that could not be foreseen and prevented and which influenced not only one of the parties, but also other persons not related to the agreement.

Unlike force majeure circumstances, force majeure situations are somewhat vague and often require special interpretation.

Pinning order

The model agreement formulates a force majeure clause. It is recommended to include a number of conditions.

1. Clause on the release of the parties from liability. It states that counterparties are not considered guilty of damage and are not obliged to compensate for it if the failure to comply with the conditions occurs as a result of the occurrence of special situations.
2. List of situations that counterparties consider force majeure: quarantines, martial law. It is recommended to include force majeure circumstances, such as drought or flood, in this paragraph.
3. Timing. This describes the time for which counterparties receive a delay in fulfilling the conditions, as well as the terms after which the contract is terminated.
4. Terms of notice. This paragraph indicates how and within what time limit the counterparty is obliged to inform the other party about the occurrence of force majeure.
5. List confirming documents, certificates, papers. For example, acts from the Ministry of Emergency Situations, certificates from Rosgidromettsentr.

Proper drafting of such agreements minimizes the need for litigation.

For more information about force majeure, see the video below.

The concept of force majeure circumstances used in Russian civil, tax and departmental legislation is explained. The features of the reflection of these circumstances in contracts between entrepreneurs are given.

According to the general rule provided for in paragraph 1 of Art. 401 of the Civil Code of the Russian Federation, a person who has not fulfilled an obligation or has performed it improperly, is liable if there is fault (intent or negligence), except when other grounds for liability are provided for by law or an agreement.

In business relations, the principle of increased responsibility of the parties applies. A person engaged in entrepreneurial activity and who has not fulfilled or improperly fulfilled an obligation shall be liable even if there is no fault. It can be released from liability only if the proper performance of the obligation was impossible due to force majeure. In theory and practice, force majeure is also referred to as force majeure.

In the civil legislation of the Russian Federation, the concept of force majeure is absent; instead, paragraph 3 of Art. 401 of the Civil Code of the Russian Federation contains the concept of force majeure, which is defined as extraordinary and unavoidable circumstances under the given conditions. This definition is quite general, there is no specific list of such circumstances in the Civil Code of the Russian Federation. The same paragraph indicates only circumstances that do not relate to force majeure: this is a violation of obligations by the debtor's counterparties, the absence of goods needed for execution on the market, the debtor's lack of the necessary funds. This list is not exhaustive, which is confirmed by judicial practice.

At the same time, the Civil Code of the Russian Federation is not the only legal source containing an indication of force majeure.

The mention of force majeure circumstances excluding the guilt of a person in committing a tax offense is also contained in paragraphs. 1 p. 1 art. 111 of the Tax Code of the Russian Federation. These circumstances of the Tax Code of the Russian Federation include natural disasters or other extraordinary and insurmountable circumstances.

Some idea of ​​the circumstances of force majeure can also be obtained from the Charter of the Railway Transport of the Russian Federation (Federal Law of 10.01.2003 N 18-FZ). Article 29 of the Charter classifies as force majeure military operations, blockade, epidemic or other circumstances beyond the control of carriers and infrastructure owners that prevent transportation.

In accordance with paragraph 1 of Art. 166 of the Code of Merchant Shipping of the Russian Federation (Federal Law of 30.04.1999 N 81-FZ), the carrier shall not be liable for the loss or damage of cargo accepted for carriage or for delay in its delivery, if it proves that the loss, damage or delay occurred due to force majeure. In addition, the Code also contains a list of circumstances exempting the carrier from liability. These include, but are not limited to, dangers or accidents at sea and in other navigable waters, any measures to save people or reasonable measures to save property at sea, a fire not caused by the fault of the carrier, actions or orders of the relevant authorities (detention, arrest, quarantine etc.), hostilities and civil unrest, strikes or other circumstances that caused the suspension or restriction of work in whole or in part, as well as other circumstances that arose through no fault of the carrier, its employees or agents.

Such a document as the Regulations on the procedure for testifying the circumstances of force majeure by the Chamber of Commerce and Industry of the Russian Federation, approved by Resolution of the Board of the Chamber of Commerce and Industry of the Russian Federation of September 30, 1994 N 28-4 (hereinafter referred to as the Regulations on the procedure for testifying), classifies natural phenomena as force majeure circumstances ( fire, flood, earthquake, hurricane), epidemics, hostilities, strikes, prohibition of export and import of goods, etc.

Some regulations simply refer to the release of the debtor from liability due to force majeure. For example, in paragraph 6 of Art. 68 of the Federal Law of 07.07.2003 N 126-FZ "On Communications" states that the telecom operator is not liable for non-fulfillment or improper fulfillment of obligations to transmit or receive messages or forward or deliver mail, if it is proved that such non-fulfillment or improper fulfillment of obligations occurred due to the fault of the user of communication services or due to force majeure.

Based on these definitions of force majeure or force majeure, it is possible to single out the main characteristic features of such circumstances. First of all, it is their unavoidability (or irresistibility) and emergency. In addition, in theory and practice, as characteristic features of force majeure circumstances, they are also called their unforeseeability at the time of the conclusion of the contract, their occurrence after the conclusion of the contract, their lack of control by the parties to the obligation and their direct impact on the performance of the obligation by the parties, i.e. the existence of a causal relationship between the force majeure event and the impossibility of fulfilling the obligation.

These characteristic features are necessary for the recognition of certain events as force majeure circumstances, and the absence of one or some of them may be a reason for the court not to recognize any event as a force majeure circumstance.

Thus, the Federal Arbitration Court of the Moscow District, in Resolution No. KG-A40/13350-04 dated 03.02.2005, acknowledged the conclusions of the courts of first and appeal instances that the proper fulfillment by the defendant of the obligations to supply flour turned out to be impossible due to force majeure, namely the death of winter crops and spring crops, which occurred due to adverse weather conditions, insufficiently substantiated, since the courts did not investigate and did not establish the existence of a causal relationship between the death of winter and spring crops and the defendant's failure to fulfill his obligations arising from the state contract. At the same time, the court pointed out that force majeure is characterized by two interrelated features, which include emergency and unavoidability under the given conditions of circumstances leading to non-fulfillment or improper fulfillment of an obligation. Extraordinariness is understood as the impossibility of foreseeing the occurrence of relevant circumstances under given conditions, unavoidability - the impossibility of preventing them by the technical and other means at the disposal of a given society. At the same time, the action of force majeure must be organically connected with the specific civil obligations of the parties and be the direct cause of the impossibility of their performance or improper performance.

In Decree of the Federal Antimonopoly Service of the Moscow District dated 09.12.2005 N KG-A40 / 12191-05, theft of cargo during transportation was not recognized as a force majeure circumstance exempting the carrier from liability, since in this case theft could not be considered as a circumstance that the carrier could not avoid could and the consequences of which could not be prevented by him, for example, by insuring his liability. In particular, the court pointed out that the defendant, being a professional carrier, could not but assume the fact that when transporting expensive cargo, it could be stolen, including by robbery.

From the concept of force majeure contained in the legislation, as well as based on legal theory and practice, it is possible to determine a certain list of circumstances that can be attributed to force majeure. At the same time, force majeure circumstances are of two types: natural disasters and other natural phenomena, including earthquakes, floods, fires, hurricanes, storms, snow drifts, avalanches, etc., and public events that are beyond the will of the parties, for example, strikes, hostilities, accidents, epidemics, blockades, the issuance of regulations by authorized state bodies prohibiting certain actions, etc.

But if natural phenomena, as a rule, do not cause controversy regarding their belonging to force majeure circumstances, then social events are not always recognized as such circumstances, both in theory and when decisions are made by the courts.

For example, the decision of the tax authority to suspend operations on the accounts of the debtor, which resulted in the inability for him to fulfill his obligation to pay, is not recognized as a force majeure circumstance (see Resolutions of the Federal Antimonopoly Service of the Moscow District dated May 15, 2006 N KG-A41 / 3765-06, dated May 23 .2006 N KG-A40/4083-06, dated 30.05.2006 N KG-A40/4491-06).

It is necessary to pay attention to the fact that the condition of paragraph 3 of Art. 401 of the Civil Code of the Russian Federation on exemption from liability due to force majeure is dispositive in nature and can be changed by law or contract.

So, in accordance with paragraph 1 of Art. 777 of the Civil Code of the Russian Federation, the contractor under contracts for the performance of research, development and technological work is liable to the customer for violation of contracts, unless he proves that such a violation occurred through no fault of the contractor. Also, according to Art. 538 of the Civil Code of the Russian Federation, a producer of agricultural products who has not fulfilled an obligation or has improperly fulfilled an obligation, is liable if he is at fault. Thus, in these cases, the law excludes the force majeure clause, applying to them the general basis of liability in the form of the debtor's fault.

The parties, by agreement, can also both narrow and expand the grounds for liability by extending the general rule of liability in case of fault to their relations or by providing additional grounds for exemption from liability to force majeure or by excluding force majeure circumstances from the grounds for exempting from liability (fully or in parts).

However, the expansion of the list of force majeure circumstances by the parties does not always find support from the court. For example, the Federal Antimonopoly Service of the Moscow District, in Resolution dated 08.06.2007 N KG-A40 / 2771-07, pointed out the inconsistency of the defendant's reference to the clause of the contract providing for the release of the parties from liability in the event of a change in the timing of production or transportation of the car by the manufacturer or a vehicle authorized by the manufacturer company, and recognized this clause of the contract as void by virtue of Art. 168 of the Civil Code of the Russian Federation as not corresponding to paragraph 3 of Art. 401 of the Civil Code of the Russian Federation, which expressly provides that force majeure circumstances do not include, in particular, violation of obligations by the counterparties of the debtor, etc.

Due to the fact that the legislation does not have a clear list of force majeure circumstances, and the issue of classifying certain events as force majeure circumstances is ambiguous, it is better to specify in the contract which events the parties consider to be force majeure or exempt from liability, taking into account the requirements of the law and trends in law enforcement practice. This will help to avoid further disagreements between the parties in the event of force majeure. This is especially relevant in the case when the parties want to provide for any special circumstances that exempt them from liability, based on the specifics of the contract and the relationship between the parties.

For example, in contracts you can find the following wording. The parties are released from liability for non-performance or improper performance of this agreement if this failure or improper performance is caused by force majeure circumstances (force majeure) that arose against the will of the parties after the conclusion of this agreement, which the parties could not foresee at the conclusion of this agreement or prevent by reasonable measures . Such force majeure circumstances include: flood, fire, earthquake and other natural phenomena, as well as war, hostilities, accidents, epidemics, strikes, civil unrest, acts or actions of state bodies that prevent the fulfillment of obligations under this contract, and any other circumstances independent of the will of the parties.

Often the parties in the contract try to indicate the maximum number of force majeure circumstances, including those that are unlikely to occur. Some lawyers are of the view that there is no need to list all possible options and overload the contract in this way. It is clear that if both parties are located, for example, in Moscow and the obligation itself must be fulfilled in Moscow, then it makes no sense to include in the list of force majeure circumstances, for example, an avalanche, but a fire or an earthquake can be reflected in the contract.

Note that if the parties are calmer in the contract to list the circumstances of force majeure in detail, this is their right, there are no obstacles to this. And it is not always possible to foresee all possible scenarios when concluding a contract. The main thing is that the force majeure clause of the contract should take into account those circumstances that can happen with a high degree of probability.

Consider the procedure for the parties in the event of force majeure. This procedure is not defined in the legislation. Therefore, as a rule, the parties establish it themselves in the contract. The party affected by the force majeure is obliged to notify the other party in writing. The contract may also provide for a method of notification, for example, by facsimile or registered mail. A condition can be introduced into the contract that the notification must contain an indication of the expected duration of the force majeure event, the nature of its impact on the performance of the contract.

In some cases, the parties require such notification to be made immediately, but it is better to indicate in the terms of the contract a certain period in days during which the party is obliged to send the notification to the other party. Also, the contract should provide for the consequences of violation of this period, for example, compensation for losses caused by failure to notify or untimely notification of force majeure circumstances, or other liability. In addition, sometimes contracts provide for the obligation of a party to also notify the other party of the termination of such circumstances.

Thus, the relevant paragraph of the article on force majeure can be formulated as follows. In the event of force majeure circumstances, the party is obliged to notify the other party in writing within 10 (ten) calendar days from the moment such circumstances arise. The notice must contain data on the nature of the circumstances, as well as, if possible, the estimated period of their duration and an assessment of their impact on the ability of the party to fulfill its obligations under this agreement. Upon termination of these circumstances, the party is obliged to immediately notify the other party in writing, indicating the time period for the fulfillment of its obligations under the contract. Failure to notify or untimely notification deprives the party of the right to refer to these circumstances as a basis for exemption from liability for failure to fulfill obligations under this agreement.

Note that, although the fact of force majeure, under certain conditions, relieves the debtor from liability for non-performance or improper performance of obligations, this does not relieve him from the obligation to fulfill the obligations stipulated by the contract. The legislation does not contain a provision on the consequences of force majeure. In practice, the following rule applies: the period for fulfilling obligations is extended for the duration of force majeure circumstances. In the contracts, the parties formulate this rule approximately as follows: “In the event of force majeure circumstances, the terms for fulfilling obligations under this contract are extended for the time during which these circumstances and their consequences are in force.”

However, force majeure circumstances and the consequences of their occurrence can last quite a long time. During this time, one or both parties may lose interest in the contract. This issue is resolved by the parties as follows. The contract includes a condition: if the force majeure circumstances and their consequences last for more than a specific time period (usually 2-3 months, unless otherwise specified in a specific contract), then the contract can be terminated by either party by notifying the other party. At the same time, the party that terminated the contract shall not be liable for losses caused to the other party by such termination, and shall not reimburse them. The contract can also determine the procedure for the return of the performance performed under the contract by the other party. Notice of termination of the contract shall be sent to the other party in writing.

In some cases, the parties prefer not to include in the contract such a condition as its unilateral termination, but indicate the need for additional negotiations to identify alternative ways of fulfilling the contract acceptable to both parties.

And finally, the party referring to the force majeure must prove the fact of its occurrence. In some cases, the fact of force majeure can be confirmed by methods that do not require special means of proof, including the presence of well-known facts, publications in the media, etc. (clause 1 clause 1 article 111 of the Tax Code of the Russian Federation). This applies to widely known circumstances, such as natural disasters, military campaigns, etc. The parties are also exempted from the need to prove well-known circumstances by virtue of the provisions of paragraph 1 of Art. 69 of the Arbitration Procedure Code of the Russian Federation (in this case, the well-known circumstances must be recognized by the court).

But sometimes it is possible to prove the occurrence of a force majeure circumstance only by special means. There is no special procedure for proving force majeure circumstances in civil law. Often, in contracts, the parties establish the need to provide confirmation of the force majeure event of the relevant document of the Chamber of Commerce and Industry of the Russian Federation (hereinafter referred to as the Russian Chamber of Commerce and Industry). However, it should be borne in mind that the Chamber of Commerce and Industry of the Russian Federation testifies to force majeure circumstances that occurred on the territory of the Russian Federation only in accordance with the terms of foreign trade transactions and international treaties of the Russian Federation. Evidence of force majeure circumstances is carried out by the Chamber of Commerce and Industry of the Russian Federation in accordance with paragraph 3 of Art. 15 of the Law of the Russian Federation of 07.07.1993 N 5340-1 “On Chambers of Commerce and Industry in the Russian Federation”, paragraph 19 of Art. 12 of the Charter of the Chamber of Commerce and Industry of the Russian Federation in the manner prescribed by the Regulations on the procedure for witnessing.

Evidence of force majeure circumstances is carried out upon a written application of a party to a foreign trade contract with the necessary documents attached. The list of such documents is set out in paragraph 3 of the Regulations and includes a duly certified copy of the foreign trade contract, which indicates the circumstances that relieve the parties from liability, lists the events that the parties agreed to consider as force majeure, names the authorities of the countries confirming the occurrence of force majeure circumstances, copies of specifications, a certificate of the volume of fulfilled obligations under the contract, documents of the competent authorities (usually at least two) confirming the existence of force majeure circumstances, a copy of the document confirming payment for the cost of the RF CCI service. In addition, the Chamber of Commerce and Industry of the Russian Federation has the right to request additional documents. The result of evidence of force majeure circumstances is a certificate issued by the Chamber, which indicates the name of the parties to the contract, the number and date of its conclusion, the place, time, period during which the force majeure circumstances took place.

For contracts between Russian organizations, force majeure circumstances may be confirmed by the relevant competent authorities, depending on the nature of the force majeure event. For example, the fact of a natural disaster can be confirmed by the Russian Emergencies Ministry.

Therefore, it is better to indicate in contracts which document of which competent authority is sufficient confirmation of the existence and duration of force majeure. This wording is quite common in contracts between Russian companies. If the parties indicate in the contract the period for the provision of a supporting document, then this period should be sufficient for its receipt. It would hardly be reasonable to indicate in the contract as such a period of three calendar days.

In conclusion, we note that the confirmation of the competent authority is only evidence of the existence of the event, which the party refers to as a force majeure circumstance. Attributing this event to such a circumstance, assessing its impact on the possibility of fulfilling the obligation, is within the competence of the court, which decides on the possibility of releasing the debtor from liability for failure to fulfill the obligation, based on the specific circumstances of the case.

The article was prepared by the Information Legal Department of the PS Jur. Center with the assistance of the author: D.D. Muratova

FORCE MAJOR EVENT

force majeure circumstances - extraordinary, insurmountable circumstances that do not depend on the will and actions of the participants in an economic agreement, in connection with which the participants are unable to fulfill their obligations. Force majeure events include: fires, earthquakes, floods, and other natural disasters. The occurrence of force majeure releases the participant, the executor of the contract from liability for the fulfillment of the obligations assumed by him.

Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B.. Modern economic dictionary. - 2nd ed., corrected. Moscow: INFRA-M. 479 p.. 1999 .

Economic dictionary. 2000 .

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