Overcome force and case. Irresistible force

The problem of delimiting the case and insurmountable force is among the eternal problems of classical civil law. It is hardly possible to find a civil law textbook or research on legal liability issues, delicate obligations, which did not include an attempt to relocate insurmountable force from a simple case (incident). However, it is not possible to say that a huge variety of theories has been developed, on the contrary, all of them are grouped around several main currents, each of which fruitfully criticizes the disadvantages of other views, but unable to overcome their intra -oretical incompleteness.

All variety of theories aimed at distinguishing the case and insurmountable force can be reduced to several main areas.

The followers of the first direction believe that irresistible force differs from the case by signs of emergency and unexpectedness; or exclusively a sign of unexpectedness. It is clear that the case can be characterized by both extremes and unexpectedness, and it is impossible to distinguish it from irresistible force on the basis of these criteria.

The following theory is based on the fact that the case is characterized by a subjective unexpectedness, and an irresistible force - objective unexpectedness.

At the same time, the question is, and what is subjective and objective unexpectedness, lawyers are responsible in different ways. Some believe that the case is unhappy due to the impossibility of foresight, and irresistible force - regardless of the foresight. It is difficult to agree with this: although some irresistible circumstances are indeed indefective regardless of the foresight, but others can be prevented when knowledge of the situation of destructive phenomenon.

In accordance with the opinion of other lawyers, subjective unexpectedness means unexpectedly based on the "possibilities of this particular person." And objective unexpectedness is unexpectedly "not only for this offender, but also for other persons, the same type on the nature and conditions of activity."

The next attempt to accumulate the border between the case and insurmountable force is to give a qualifying criterion a sign of an external nature inherent in irresistible strength, and unusual for the case.

Any circumstance of force majeure is external, but not any external circumstance is an irresistible force.

Another developed in domestic civilistic science the theory of occasion of the case from irresistible force received the name "Theory of the necessary and random relations." The first of her outlined D.M. GENKIN IN 1949: "The concept of the incident - a simple case - lies in a number of the concept of guilt ... Wines and incidents lie in a number of necessary causality, an irresistible force is associated with the concept of random causality" 5. Subsequently, this concept enjoyed considerable popularity in the USSR. The reasons are divided into two types: creating an opportunity and on turning it in reality. Alone and the same reason in some conditions creates only the possibility, and in others - the validity of the result "- modernized the initial postulates of the theory of O.S. Ioffe.

Thus, none of the invented theories of the disarming of the case and insurmountable force is not able to solve this task. It seems that the initial error lies in the understanding of the legal category "case (incident). The fact is that in jurisprudence, the concept of "case" covers two essentially different and mutually non-intersecting phenomena: the case of external and the case of internal having a total of them is less than each of them in relation to the phenomenon of force majeure. Meanwhile, civilists, forgetting about the essential difference between the external and internal case, try to give a universal criterion, derive general formulas, such as: the case is an antipode of guilt, but an irresistible force - a qualified view of the case.

All this suggests that it is impossible to distinguish the case and insurmountable force, not differentiating the category of "case". An attempt to make it was taken by a number of authors who identified a subjective case (determined through a mental attitude) and an objective case (as an external phenomenon, existing independently of the will of the face). The variety of the latter they called insurmountable strength. However, by unclear reasons, the value of the case as a category of civil law These researchers preserved only for a "subjective case", among the "objective case", giving the legal importance only by an insurmountable force, without bringing to the end of its generally a logical teaching.

The case and insurmountable force relate to the number of circumstances, which, as a general rule liberate the debtor from civil liability. The case is a circumstance that testifies the absence of fault of any of the participants in obligation. This circumstance is characterized by subjective unexpectedness, so it is impossible to foresee it in advance. An example of the case is theft of the subject of the contract by third parties, which makes it impossible to fulfill the contractor's contract.

Under irresistible force is understood as an eventful and insurmountable event under these terms. This includes the destructive phenomena of nature (floods, earthquakes, etc.), as well as some public phenomena (hostilities, strikes, etc.). An insurmountable force is not only impossible to foresee, but it is impossible to prevent any available means even when the face could foresee the effect of force majeure. Exemption from responsibility due to insurmountable force takes place when there is a causal connection between the insurmountable force and the consequences. An insurmountable force does not include violation of duties from the debtor counterparties, the lack of in the market is needed for the execution of goods, the lack of the debtor the necessary funds.

Contract: concept, content and form.

Contract Agreement of two or several persons on establishing, changing or termination of civil rights and obligations (paragraph 1 of Article 420 of the Civil Code of the Russian Federation) is recognized.

The contract is a variety of transaction - a legal fact. As any transaction, the Agreement is a legitimate action aimed at certain consequences.

Any contract consists of a certain set of conditions in which the rights and obligations of the parties are enshrined. The combination of these conditions is called the contents of the contract. The terms of the contract are divided into three groups: essential, ordinary and random.

Significant include the conditions that are necessary in order to be considered to be concluded. Significant conditions can also be classified into three groups:

1) conditions on the subject of the contract;

2) conditions that are named in law or legal acts as significant or necessary for the contracts of this species;

3) All those conditions relative to which an agreement should be reached on the application of one of the parties.

The subject of the contract is usually any things or certain actions that the other side should take. These actions can be both legal and actual.

Conditions that are named in law or other legal acts as significant or necessary, refers, for example, insurance risk for the insurance contract.

Conventional conditions - These are the conditions that in practice are included in the content of this contract, however, their absence does not affect its reality. For example, the supply contract usually includes a condition of a penalty for failure to fulfill the contract. As a rule, conventional conditions are provided for by dispositive norms.

Finally, random - These are the conditions that are not typical for this contract, however, if the parties agreed to their inclusion in the contract, they become legally significant.

Since the contract is a type of transaction, all rules set for the transaction form are applied to its form. In particular, the contract can be enclosed in oral, simple written or notarial form. For some types of contract, state registration is also provided.

Publication date: 2015-02-03; Read: 547 | Violation of copyright page

fors major in the contract and law

Force Major - Translated from French "Higher Strength". The concept of Fors Major in Russian legislation (right) is given to the similarity of international law. This article will cause a definition of force majeure as a condition for exemption from responsibility under the contract or termination of the contract.

Fors major in the contract

The concept of force majeure in the contract was not just like that. Anticipate all cataclysms, it will happen very hard.

The distinction of categories "insurmountable force" and "case (case)" in civil law

Provide in the contract the fall of meteorite, earthquake, tsunami or default is not possible. So in the Russian (as well as in the international) right, such a state of objective reality is provided, which allows the parties to terminate (cancel) the contract concluded before the ons-major, or to avoid responsibility for its failure (inappropriate implementation). It should be borne in mind that avoiding responsibility is not to withdraw the main responsibility under the contract. This only means that the extended commitment is obliged to fulfill its obligation without paying no penalties, fines and penalties provided for by law or contract.

Fors major in terms of law

The concept of force majeure (or, as it is also called, force majeure) is given in Art. 401 Civil Code of the Russian Federation. According to this article, irresistible force is emergency and unpredictable circumstances under these conditions. Thus, as follows from this definition, the circumstances should have the following elements in case of insurmountable strength:
- Emergency I.
- Empty.

As can be seen from the above, the law does not give a complete list, which defines what force majeure is. For each specific case, they may be different. For example, paragraph 2 of Article 794 of the Civil Code of the Russian Federation establishes that the carrier and the sender of the cargo are exempt from liability in the event of non-vehicle non-use or non-use of the vehicle submitted, if this happens due to:

force majeureas well as other phenomena of a spontaneous character (fires, drifts, floods) and military Actions;
termination or restriction of cargo transportation in certain directions established in the manner prescribed by the relevant transport charter or code;
In other cases provided for by transport charters and codes.

Thus, Article 794 for the transport contracts, various concepts are established: an irresistible force, an election phenomena, military actions. In the judicial practice, many include military action to insurmountable strength, as well as the phenomena of a natural nature. The lawyers of our company agree that the concept of "insurmountable force" is general, in relation to other concepts (hostilities, natural disaster, fire, etc.).

The Russian arbitration practice proceeds from the fact that the provision of paragraph 3 of Article 401 of the Civil Code of the Russian Federation, irresistible force is characterized by two related features. These include Emergency and Eliminate Under these Terms of Conditions leading to failure or improper fulfillment of the obligation. Underground understands the impossibility of prediction under these conditions for the occurrence of relevant circumstances, under the unexpectedness - the impossibility of preventing them with technical and other means available to this society. Also in practice there are more detailed definitions of force-magicians: "In the field of entrepreneurial activity, the circumstance exempting from responsibility is only the impact of force majeure: natural phenomena (earthquake, flood), certain prohibitive measures of the state, as well as public life circumstances: Military Actions , epidemics, large-scale strikes and so on, that is, such phenomena, the impact of which occurs from outside and is unpredictable "(Resolution of the Federal Arbitration Court of the Moscow District of October 23, 2001 N KG-A41 / 5895-01).

From the point of view of the law, Force Major must meet several requirements.

First, it must be unexpected. Those. If at least one of the parties foreseen the possibility of an occurrence of a certain event, such an event cannot be recognized by force majeure. Force majeure cannot be recognized as a serious financial situation of one or even several interconnected organizations. But the global economic crisis should be recognized. But most often force majeure, the economic crisis is recognized in international law. In Russia, so far the courts are carefully related to any economic change.

Secondly, force majeure should be undesirable for both sides (emergency). Those. The parties, concluding the contract, wanted it to be fulfilled to the end by both parties and in no case wanted for the once major. Find out interest in force majeure is very difficult. It is clear that the owner of the car, which for a long time cannot sell the insured property, it is advantageous that something difficult to fall on the car, at least a meteorite. But thoroughly find out whether in this force majeure, the insured interest will be very difficult.

Third, the unexpectedness of the circumstances. The parties should not be able to prevent circumstances caused by an insurmountable force.

Force majeure can also be considered circumstances that took place in the process of ordinary economic activity. Thus, only exceptional circumstances can be viewed as force majeure, i.e. Fully objective, independent of the contract directly from the will. Such circumstances must be extreme and unavailable and as some judicial practice considers the immediate cause of the impossibility of fulfilling the obligations of the person.

Anyway, force major court can be recognized as a particular case.. The concept of "force majeure" is subject to widespread interpretation and will always have an unlimited open list of events, not described by any legitimate.

Fire as an insurmountable force

Very often, lawsuits happen in practice when the supplier presents to the recipient (customer, buyer) of the goods (Product) the requirements of the penalty for the delay in obligations, while the proceedings of obligations occurred on the occurrence of a fire in stock. The provider refers to the fact that the fire in stock is not his fault and foresee and prevent it - the prerogative of the buyer (customer). And if the court recognizes the fire by an unexpected force, then the supplier is trying to cling to various other formalities: there is no date in the act of fire, in the act of fire is not indicated material damage incurred by the owner (tenant) of the warehouse and others. The court takes into account any arguments Parties, however, in order to avoid the payment of the penalty, it is necessary to work pretty and prove that unnecessary events influenced the normal economic relations of the cultivated and deprived him of the material opportunities he possessed before the fire. And this is the art of a lawyer.

economic sanctions of Russia - Fors-major Is this?

Recently recently recently the topic of Russia's economic sanctions on the import of European and American goods. On the one hand, these are purely economic processes and they, according to practice, should not be an insurmountable force, on the other hand, too much damage causes some suppliers or buyers of foreign products. Our company's opinion is to recognize these economic sanctions circumstances of force majeure (force majeure). And we are ready to defend this point of view in court!

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Course work plan

Introduction

1. An insurmountable force in civil law.

• 1.1. Inspealous power and its development in civil law.
• 1.2. The essence of force majeure in Russian law.

2. The case and insurmountable force as the foundation of liberation from civil liability.

• 2.1. The case as a circumstance entailed failure or improper execution of the debtor's obligations in the absence of guilt.
• 2.2.

  What is an irresistible force in civil law?

  Russian legislation on irresistible strength and chance.

Conclusion.

List of sources of information used.

Introduction

So historically behaved that in the internal structure of such titan of jurisprudence, as civil law, if it can be expressed, loved by civilists themes, which the civilian community is very willing to discuss and analyzes and which they cavalize from one scientific generation to another, without losing their social legal relevance. And in fact, how much it was said and written on such categories as the "legal entity", "deal", "obligation", "civil-law contract", and many others. One of such basic and fundamental legal categories is the category of civil liability. And in the pre-revolutionary, and in the Soviet, and in modern Russian periods, civilistic science not without reason paid the closest attention to this problem, analyzing both the general issues of civil liability as a whole and its individual elements. Moreover, many cornea of \u200b\u200bthe domestic civilistic thought created their scientific names on the basis of the analytical permission of the problems of legal liability in civil law.

Purpose of the study - Analysis of the role of the case and insurmountable force in civil law.

Research tasks:

• - consider the role of the case in civil law,
• - consider the role of force majeure in civil law,
• - Compare the concept of "case" and "insurmountable force" in civil law.

Object of study - Public relations arising from the event and under the influence of insurmountable force.

Subject of study - The legal consequences of public relations arising from the occurrence of the case and under the influence of insurmountable force.

Literature review. The case and insurmountable force in civil law are devoted to the work of Vitryansky V., Gavrilova K., Ivanhenko Yu.G., Primakp. Kulakova V.V., Lezeina L.V., Sergina N.M., Biryukova A.A., Myshina A.V. And others.

Research methods. Synthesis, analysis, comparison, generalization, comparative legal method.

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The debtor's responsibility for failure to fulfill the improper fulfillment of the obligation or for causing harm in the presence of force majeure (force majeure circumstances, from Latin. Vismaior is the external action of the highest strength against the will of a person; an unforeseen event).

In paragraph 3 of Art. 401 GK An insurmountable force is defined as "an emergency and unpredictable circumstance under these conditions." Despite the presence of legal definition, the establishment of whether the concrete circumstance relates to an insurmountable force or not, is quite complicated.

In determining the insurmountable force, it is contained characterizing its signs.

Signs of force majeure:

1. Extraordinary, exceptional circumstance that falls out of a number of ordinary phenomena (for example, cannot be considered as an irresistible force annual spill of the river, the offensive of winter, the death of a person, etc. - Although these events are unaffected, they do not become an emergency, and therefore can not be attributed to insurmountable strength);

eliminate with these specific circumstances (unexpectedness should be objective, i.e. it is impossible to prevent, even if there is a possibility of foresight).

Traditionally, practice refers to an insurmountable power of the phenomenon of a spontaneous nature: earthquakes, heavy snowfall, tsunami, etc.

For force majeure circumstances Certain phenomena of public life can also include: military operations, epidemics, strikes, as well as various prohibitive measures of state bodies: the announcement of quarantine, prohibition of transportation, the prohibition of trade in the order of international sanctions, etc.

To liberate the debtor, he must prove the presence of both the most insurmountable force and the causal relationship between the violation of the obligation (causing harm) and insurmountable force.

An insurmountable force cannot be, in particular, violation of duties on the part of the debtor's counterparties, the lack of needed in the market for the execution of goods, the lack of the debtor of the necessary funds (paragraph 3 of Article 401 of the Civil Code).

In a number of exceptional cases, for increased protection of citizens' rights, as well as taking into account the special danger of the activities carried out, the legislator establishes the obligation to compensate the harm that is the result of force majeure. The obligation of the manufacturer (performer) to compensate the damage caused to life, health or the property of the consumer in connection with the use of materials, equipment, tools, comes regardless of whether the existing level of scientific and technological knowledge reveal their malicious properties or not. In accordance with international conventions, the liability for damage caused by the use of nuclear materials does not exclude insurmountable force.

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The problem made in the title of this work applies to the number of inexhaustible problems of classical civil law. It is hardly possible to find a civil law textbook or research on legal liability issues, delicate obligations, which did not include an attempt to relocate insurmountable force from a simple case (incident). However, it is not possible to say that a huge variety of theories has been developed, on the contrary, all of them are grouped around several main currents, each of which fruitfully criticizes the disadvantages of other views, but unable to overcome their intra -oretical incompleteness. Therefore, it is seen necessary to develop a new theory that would have absorbed all the achievements of the preceding, having overcome their erroneous provisions. Within the framework of this article, an attempt was made to develop precisely such a position.

All variety of theories aimed at distinguishing the case and insurmountable force can be reduced to several main areas.

The followers of the first direction believe that irresistible force differs from the case by signs of emergency and unexpectedness; or exclusively a sign of unexpectedness.

It makes sense to disassemble the proposed criteria separately. Although it is impossible to agree that any simple case is "in one way or another extraordinary" [see: 4, p. 29; 5, 129] (Suppose that no conventional fluctuations outside the incident can not be called emergency), but many incidents are really characterized by extreme. It is enough to say that even the strongest devastating natural elements, which enhate the introduction of an emergency mode, affecting a particular obligation, does not always lead to the impossibility of its execution, thereby not recognizing the insurmountable force and remaining within the framework of a simple case. We illustrate an example. The appeal instance, leaving the appealed decision, indicated that the court of first instance legally rejected the argument of the plaintiff on the occurrence of the circumstances of the force majeure, which, in his opinion, is confirmed by the decree of the President of the Russian Federation on the introduction of an emergency regime (introduced due to a strong drought). In satisfaction, the complaint was denied at all, "since the plaintiff is not a producer of agricultural products, ... they are not presented with any evidence that it has been deprived of the opportunity to purchase goods in other constituent entities of the Russian Federation, not subject to adverse natural conditions, as well as to purchase goods provided for by the contract In the states of far and neighboring abroad. "

In addition, the uncontrolled manifestation of the malicious properties of the source of increased risk belonging to the incident is also emergency. We give the appropriate example. As it was said in one and judicial acts, "the car received mechanical damage as a result of a pipeline breakthrough (a consequence of crimping works), ... The driver of the driver K., who managed the car at the time of damage, ... not installed. ... C. could not assume that during the movement, foreign objects can fly, so the incident qualifies as a casus (case). Suddenness and extraordinary, i.e. The extraordinary circumstance is no doubt, but it was reasonably recognized as a casus, and not an insurmountable force.

Summarizing the above, it can be said that a sign of the extremes is insufficient in the case of a simple case of an insurmountable force.

The opinion on the prevention of Casus is also shared by all. "If the possibility of preventing harm was really real, then, obviously, the foresight was or should have been real. And with this position, the behavior of the injury should be considered guilty; He must be responsible for the guilt "- rightly indicated N.S. Malein.

It is clear that the case can be characterized by both an extremes and unexpectedness, and it is impossible to distinguish it from insurmountable force on the basis of these criteria.

The following theory is based on the fact that the case is characterized by a subjective unexpectedness, and an irresistible force - objective unexpectedness. Sometimes, touching the question of insurmountable strength, the judiciary point out in their acts: "Her difference from the case is that it has an objective basis, and not subjective unexplored."

At the same time, the question is, and what is subjective and objective unexpectedness, lawyers are responsible in different ways.

Some believe that the case is unhappy due to the impossibility of foresight, and irresistible force - regardless of the foresight. It is difficult to agree with this: although some irresistible circumstances are indeed indefective regardless of the foresight, but others can be prevented when knowledge of the situation of destructive phenomenon.

For example, "Flooding in Serov arose as a result of an emergency event - a breakthrough of the dam of the Kiselev reservoir during the spring flood of the rain flood" very rare repeatability ". However, experts found that the dam's breakthrough would be able to avoid if the hydraulic personnel were warned in advance of the scale of the upcoming flood and would not start regular operations on the accumulation of water in the reservoir. "[CIET. by: 13, p. 140]. Among other things, the impossibility of preventing the effects of the element was due and an unforeseen of its offensive.

Therefore, the dependence of unequivaticness from the foresight cannot serve as a watershed to distinguish between the case of irresistible force.

In accordance with the opinion of other lawyers, subjective unexpectedness means unexpectedly based on the "possibilities of this particular person." And objective unexpectedness is unexpectedly "not only for this offender, but also for other persons, the same type on the nature and conditions of activity."

Sometimes this opinion is posted in a different verbal shell: under a simple (unqualified) case, the circumstance is understood, which is generally prevented at a given level of development of science and technology, but which under these specific conditions turned out to be random. "

Or it is emphasized that when referring to insurmountable force, it is not enough to prove the adoption of caring measures and diligence, the debtor needs to "prove the objective impossibility of proper execution, i.e. The fact that even if he (as, however, and any face in his place) showed more caringness and diligence than those that were required of it (including the maximum possible (most, best) in these circumstances. Care and caution) , he would still not be able to fulfill the obligation. "

It seems that the differentiation is subjective and objectively (excess) possible measures to prevent (or) eliminate the effects of circumstances, is extremely unreasonable. The phenomenon cannot be prevented from the point of view of subjective and unpandably from the standpoint of an objective criterion. The only reasonable criterion of unexpectedness is unexpected from the point of view of the possibilities of the offender and persons, the same type with him by the genus and conditions of activity. Undoubtedly from the point of view of universal capabilities of a whole society is only a formal opportunity to prevent harm. I remember in connection with this Gegel's doctrine of the dialectics of the possibility and reality: "It is formally possible, everything that does not contradict himself, identical with him. It is possible, for example, that today the moon will fall on the ground, the Turkish Sultan will be done by the Roman Pare. However, the formal feature is opposed to another possibility, i.e. The inability to first. Formal opportunity, therefore, in fact, there is an impossibility. " And the same formal (objective) prevention is unexpected.

Moreover, often the impact of a simple case has much stronger than the insurmountable force quantitative and (or) qualitative characteristics. Example: The Supreme Court of the Russian Federation abolished the decision of the Court of Cassation, which was denied the satisfaction of the requirements of P. to the gas supplying organization on the compensation of harm caused by the spontaneous explosion of the gas-household mixture. The rationale was indicated: "Responsibility for the harm caused by the action of a source of increased danger should be emphasized both with the purposeful use of their use and in the spontaneous manifestation of their malicious properties."

As we can see, the harm has been caused as a result of spontaneous manifestation of the malicious properties of the source of increased danger, i.e. As a result of the incident, not an insurmountable force. However, can we talk about any "objective prevention" of this excesse? It seems that the explosion of a gas-household mixture, in its legal nature, not going beyond the incident, has much stronger and powerful destructive consequences than other circumstances of force majeure. And it is not possible to say that such a casus can be prevented by attaching any effort to prevent force majeure.

Based on the all outlined, the theory of objective / subjective unexpectedness also cannot be taken as a basis.

The next attempt to accumulate the border between the case and insurmountable force is to give a qualifying criterion a sign of an external nature inherent in irresistible strength, and unusual for the case. However, almost all researchers use this criterion carefully and do not absolit its meaning, since "rain, hail, ice is external, but are not extraordinary, that is, cannot be attributed to insurmountable strength."

According to the fair remark I.B. Novitsky, "If it is correct that the" insurmountable force "is an objective and random event, it cannot be said that any objective and random event is" insurmountable force "." In other words, any circumstance of force majeure is external, but not any external circumstance is an irresistible force.

Perhaps only O.V. Dmitrieva considers the external to the activity of the person the nature of the only and sufficient criterion of distinction. Although certainly it is not enough to solve the task.

Another, developed in the domestic civilistic science, the theory of occasion of the case from irresistible force received the name of the "theory of necessary and random relations". The first of her outlined D.M. GENKIN IN 1949: "The concept of a casus is a simple case - lies in a number of concepts of guilt ... Wines and incidents lie in a row necessary causality, irresistible force associated with the concept random causality. " Subsequently, this concept enjoyed considerable popularity in the USSR.

"The necessary causal relationship means that the result follows from the most essential phenomena underlying the process - wrote one of the apologists of D.M. Genkina V.A. Oguezicht - and with random - the connection between behavior and the result is extremely distant, is an appearance, the behavior of the person should not have entail this result.

"The reasons are divided into two types: on creating the opportunity and on turning it in reality. Alone and the same reason in some conditions creates only the possibility, and in others - the validity of the result "- modernized the initial postulates of the theory of O.S. Ioffe.

However, many scientists subjected to the cause of strict criticism.

"From the point of view of the philosophy of random causal connections, it cannot be, since the relationship between the cause and consequence is always necessary," one of the counter-rules sounds. However, this remark does not correspond to reality, it is enough to bring an excerpt from monumental labor on materialistic dialectic: "The relationship between the cause and consequence can perform in two forms: necessary and random. The need to expresses the inevitability of the onset of one or another consequence due to the internal relationship between them. Accidentally does not express such inevitability, and ... can be characterized as something that may be, and may not be in reality. " Philosophers also cause causality to random and necessary, which is not surprising, since each group of categories of dialectics is closely interconnected with other groups.

The following arguments of opponents of the theory are reduced to the fact that "the causal connection ... or there is, or not, and it cannot be distinguished by random and necessary"; "The term" causal-random relationship "does not mean the kind of causal connection, but indicates the absence of such."

These arguments are also disconnected: the causal theory does not deny that any consequence is associated with its cause necessary, the question is, which was the necessary cause of the violation of the contract or harm. For chance, the activity of the person is investigated - if it only randomly (externally, slightly) is sharpened between the objective circumstance and its destructive consequences, then an insurmountable force takes place. And what if it is not a random factor, the person put into the state of impossibility to fulfill the contract or acting as an instrument in the hands of the element in causing harm? It is only a random and remote moment in an infinite chain of causal interaction.

The lack of the theory of causative relations is seen in other: "The cause of force majeure of force ... does not give a response to the question of what is the phenomenon of force majeure." This should agree in the sense that making the emphasis on the philosophical component, it does not take into account the formal legal criteria. Despite, but the fact that both the incident and irresistible force have their metapoter in philosophical categories of need and chance, but at the same time they are not philosophical, but legal phenomena and cannot be explained solely on a philosophical basis without attracting legal instruments.

Thus, none of the invented theories of the disarming of the case and insurmountable force is not able to solve this task. It seems that the initial error lies in the understanding of the legal category "case (incident). The fact is that in jurisprudence, the concept of "case" covers two essentially different and mutually non-intersecting phenomena: the case of external and the case of internal having a total of them is less than each of them in relation to the phenomenon of force majeure. Meanwhile, civilists, forgetting about the essential difference between the external and internal case, try to give a universal criterion, derive general formulas, such as: the case is an antipode of guilt [See: 15; 9], and an irresistible force - a qualified view of the case.

But the antipode of guilt is only an inner case, while an overwhelming force acts qualified (ie, with a sign of unexpected), the view of an exceptionally external case.

Dominates in the domestic civil law literature such an understanding of the Casus: "An erroneous state, in which the injection could not and should not have foreseen and prevent the harmful effects of his actions." The opposite vision belongs to the Czech lawyer V. Knappu: "In fact, wine and the case are not opposable and cannot be compared. Wines characterizes the subjective side of the offense, while the case is an objective category "[CIET. By:, s. 248]. But the scientist is absoluting external and does not take into account the inner case.

Ignoring the dualism of the incident leads to internally contradictory judgments of theorists. Here are the most characteristic examples. "The case is the mental attitude of the subject to his actions in which he did not know and should not be aware of the possibility of the onset of harmful consequences" - it was said in the work of E.A. Pavlodsky.

At the same time, in a special paragraph entitled "Responsibility in case of contractual obligations" by such "simple cases", the author was carried out other than those caused by natural circumstances the unfavorable conditions for the spread of radio waves (in obligations aimed at providing communication services); simple wagons arising due to an accident locomotive; as well as hail, rain, ice. But what is this mental attitude? On the contrary, these are objective events that have the origin of the outside (outside the activities of the person) and with the subjective side of the person not related

V.A. Belov comes the opposite: determines the case as "an unforeseen event that caused the person to be performed by the face of unlawful malicious actions." And it raises an example: the ball after hitting the billiardist flew to the street, struck the glass roof of the neighboring house and fell on an expensive vase, thereby breaking it. But this is not an event, namely the state of the psyche when the person could not know about the consequences of his actions.

All this suggests that it is impossible to distinguish the case and insurmountable force, not differentiating the category of "case". An attempt to make it was taken by a number of authors who identified a subjective case (determined through a mental attitude) and an objective case (as an external phenomenon, existing independently of the will of the face). The variety of the latter they called insurmountable strength. However, by unclear reasons, the value of the case as a category of civil law These researchers preserved only for a "subjective case", among the "objective case", giving the legal importance only by an insurmountable force, without bringing to the end of its generally a logical teaching.

It seems that it is not necessary to speak not about objective and subjective, but about internal and on the external case, since both of them are objective equally, because arise regardless of the will and consciousness of the face.

So, as has already been repeatedly mentioned in the study, many incidents are unaffected by no less irresistible force. These characteristics are characteristic of the inner casus, which is most often consigned to the unscultural manifestation of the malicious properties of the source of increased risk. Here is an example. "Causing harm due to destruction during the operation of the mechanisms belonging to the respondent of the car according to Part 3 of Art. 401, Part 1 Art. 1079 of the Civil Code of the Russian Federation cannot be regarded as an action of force majeure, since the causing of harm was caused by the uncontrolled manifestation of the internal properties of the source of increased danger, "the judicial resolution is said. A person is not able to take measures to prevent and (or) eliminate the malicious effects of internally inherent in the source of increased hazard properties.

As for the external case, it, as well as an insurmountable force, occurs from the outside, but due to its weak quantitative and (or) qualitative characteristics only contributes to harm, but does not predetermine it, it is not a decisive and necessary cause (with causing innovative harm ), Or makes it difficult to fulfill the obligation, without making it absolutely impossible (in violation of the contract). Ultimately, adverse effects are becoming possible as a result of the unlawful behavior of the division, expressed in non-acceptance of measures for preventing and (or) elimination of the effects of external phenomenon.

We illustrate an example. Allowing the stated requirements, the court proceeded from the fact that the accident is not the result of force majeure, since in this case B. actually did not cope with the control of the source of increased danger. The driver before the departure did not check and did not provide in the way the maintenance of the vehicle in accordance with the main provisions for the access of vehicles for operation and responsibilities for ensuring road safety. Although the owner of the car and affected the natural element, but its impact could be eliminated / prevented by taking appropriate security measures, which, however, was not done.

Summing up, it can be said that none of the known theories of the disarming of the case and insurmountable force cannot be recognized as final developed. The reason is that civilians forget that the category "civil-legal case (incident) covers two inhomogeneous phenomena: external and internal incident. The inner casus, as well as an insurmountable force, is characterized by a sign of the imposition of the consequences, but differs from it in what has internally origin in the field of person's activities. Whereas the outer case, having, like an irresistible force, external in relation to the activity of the face, the origin, unlike the latter, is not characterized by a sign of the imposition of consequences.

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Civilide science knows two approaches to the delimitation of such concepts as a subjective case and irresistible force. In civil law, this is possible thanks to the provision nominated in 1949. In accordance with it, the incident and wines are in the field of necessary causality. At the same time, what is an insurmountable force lies in a number of accidents. Some researchers believed that the distinction of the above concepts should be carried out not in accordance with the nature of the causal relationship. An insurmountable force in civil law should be considered as a factor on the properties such as unexpectedness and extremes.

Modern approach

Most authors today adhere to the opinions that irresistible strength in civil law is such a factor that cannot be not only foreseen, but it is impossible to prevent any available funds available at a person. This is not possible even when the person may assume consequences. This position first secured the Soviet, and then the Russian Civil Code.

Powerful force: Definition

In the basics of 1991, a legal concept was enshrined. An insurmountable force was determined as unexpected and extraordinary circumstances in specific conditions. These, in particular, relate to natural disasters, military actions and so on. However, these factors have not included violations of the debtor's counterparty or the lack of necessary goods in the market. In modern sectoral regulations, the circumstances of force majeure are also enshrined. The Civil Code of the Russian Federation does not include the number of factors, among other things, the lack of necessary funds from the debtor.

general characteristics

Considering the issue in more detail, it should be said that the concept of "insurmountable power" of the Civil Code of the Russian Federation refers:

Specificity

To any other circumstance, which prevents the execution of requirements, has become an insurmountable force, it should acquire two main features: unexpectedness and emergency. In the absence of at least one of them, the factor cannot refer to the category under consideration. So, for example, the change of seasons has an unequivocal character. Nevertheless, it is considered the usual phenomenon, and there is no emergency. The death of a person is also not considered as an circumstance of force majeure. The Civil Code of the Russian Federation does not see anything extraordinary event in this inevitable event. It is indicative in this case an example of companies that delivered goods by sea to India from Europe. In 1956, a Suez Canal was closed, which was the extraordinary event for these enterprises. However, it could not act as an insurmountable force, since it was possible to continue transporting through the Cape of Good Hope.

Relativity

This feature is completely understood. Under art. 401, clause 3 of the GC, the circumstances of force majeure include only those that can be recognized simultaneously unavailable and emergency under concrete conditions. This means that in one case the factor can act as a normal event. Under other conditions, it will certainly be considered an insurmountable force that prevents the implementation of the requirements.
For example, if the ship was far away at sea at the time of a warning about the storm and did not have time to hide in the port. The step of the storm will be considered an insurmountable force for him. In the event that the guideline of the ship located near the port at the time of warning, did not make any security measures, and the ship fell into the storm, this event is not included in the category under consideration. The fire in the forest will act as an insurmountable force for a person who does not have extinguishing means, and will not be for the person who has them.

Business activities

In the commercial sphere, legal force has a certain specificity. So, the debtor can take advantage of the opportunity to be freed from obligations under certain conditions. In particular, an irresistible force acts as them. In civil law, the concept under consideration is referred to as "Fors Major". In addition to the factors listed above, this category can also be a ban on the implementation of trade activities in connection with the action of international sanctions, the prohibition of cargo transportation, the announcement of quarantine, and so on.

Indication in agreements

In the process of drawing up contracts, the question often arises whether it is necessary to indicate insurmountable circumstances. And if there is a need for this, then what should be their volume. The concept of "force majeure" is not defined in the Russian regulatory system. Led in Art. 401, clause 3 circumstances are fixed by the criteria of "Eliminate" and "Emergency". A similar definition is present in Art. 79 UN Conventions on International Level Puplies.

Exemption from responsibility

From Art. 401, p. 3 It is necessary to remove obligations due to the inability to fulfill the requirements. As another consequence, which often is associated with the emergence of force majeure, the prolongation (renewal) of the period of fulfillment of the terms of the contract at the time during which irresistible force is valid. Civil Code does not contain such a reservation. Nevertheless, in practice, the extension of the timing of the fulfillment of the requirements has become quite widespread. Moreover, many experts talk about the formation of a certain custom of office work.

Uncertainty

None in the domestic, nor in the international regulatory framework there is no completed and mandatory list of circumstances that can be recognized by insurmountable. According to analysts, such uncertainty about this issue for the process of drawing up contracts and agreements is not only undesirable, but also very dangerous. Often, participants are limited to the following position: "Parties will not be responsible for improper performance (non-fulfillment) of obligations if insurmountable circumstances prevented this" - and put on this point. In the absence of an exact list of all events that parties are recognized by force majeure, the emergence of disagreements and disputes regarding one or another event.

Possible prevention of conflict situations

As practice shows, the most appropriate will be the indication in the contract of such irresistible circumstances as:

Controversial moment

Natural disasters are definitely related to irresistible circumstances if a violation of the terms of the agreement is connected with them. In Germany, an earthquake, hurricanes, eruptions of volcanoes, droughts, tornadoes, landslides and so on are in Germany to Force Major, as in Russia. Similarly, the question was resolved about the assistance of natural disasters to the category of insurmountable circumstances and in Anglo-American and French law. However, the controversial remains the moment regarding public events. In science, there is an opinion that the circumstances of force majeure, of course, are strikes and blockades, folk troubles, military actions. However, not all this opinion is recognized as correct. These events must comply with the above criteria for which the circumstance goes to the category of force majeure.

Military actions

A long time has existed a persistent opinion that it is unacceptable to refer to social cataclysms as for force majeure. However, with the beginning of the first, and then the second world wars, there was a need to recognize the irresistibility of the circumstances arising in connection with the combat actions. Despite the awareness of this connection, it was not recorded in the regulatory framework. There is no this factor and among the irresistible in a number of modern legal acts. In Germany, for example, the war belongs to force majeure. However, not in all cases it acts as an insurmountable force. In the civil law of this country, combat actions lose a sign of unforeseen due to their duration. Simply put, the longer the war is going, to a lesser extent, it acts as an obstacle to the execution of certain obligations. Similarly, this issue is resolved in English.

Terrorist attacks

Currently, disputes do not stop whether the terrorist act is acting as an irresistible force. In the criminal law of Russia, this moment is not negotiated. According to some experts, the terrorist attack cannot be attributed to the category of force majeure. However, there is another point of view. In accordance with it, if the terrorist attack has the above criteria, it must be recognized as an irresistible force. In criminal law, there are no references to prevent this event. This is due to the fact that the actions of this kind do not act as the responsibility of the debtor under the terms of the contract.

Return force in civil law

This is another rather controversial question of the domestic regulatory system. His aggravation is associated with emergency variability, which has civil law today. The inverse force of the law and the limits of its application are not currently working properly. The problem of breaking over time between the appeal to the appropriate authorized body and the adoption of the appropriate act, the inconsistency of which the standards were established later, and therefore he was canceled in court.

An insurmountable force occupies the most important place among the circumstances, liberating the debtor from responsibility for violation of the contractual obligation.

Its legal definition is fixed in paragraph 3 of Art. 401 of the Civil Code of the Russian Federation in connection with the establishment of the border of responsibility, regardless of guilt. An insurmountable force is a specific circumstance of liberation from the responsibility of the debtor carrying out entrepreneurial activities. At the same time, it plays a big role for other participants in civil turnover, since they are exempt from liability even if there is a case. In this regard, we do not share the view expressed in legal literature that the concept of insurmountable force applies only to legal relations carried out between the legal entities of Sergeev V.I. Force major circumstances in entrepreneurial practice // Law and Economics. 2001. No. 6. P. 66 ..

The concept of "insurmountable force" is known to legislation and judicial practice, both Russia and foreign countries. Regulation and determination of the essence of force majeure in various states is not the same. This is due, first of all, with the peculiarities of their historical development Korshunova N.P. An insurmountable force: a new look at the old problem // Journal of Russian Law. 2008. №3. P.34 ..

The category of force majeure was known to another Russian pre-revolutionary law. At the same time, the overall rate of exemption from responsibility as a result of an insurmountable force was absent. Moreover, civil legislation of that time generally launched unconditional responsibility for any circumstances, including the case and insurmountable force. This provision was criticized by Russian pre-revolutionary lawyers as not the corresponding idea of \u200b\u200bthe justice of Annenkov K. System of Russian Civil Law. T. 3. Rights obligatory. Second ed., Revision. and add. St. Petersburg, 1898. P. 134; Victorious people K. Course Court: the third part. Contracts and. obligations. Typography MPS, 1880. P. 152 - 153.

In some legislative acts, mainly in transport law, irresistible force was still mentioned, but its content was not disclosed (for example, Art. 2 of the general charter of Russian railways).

In the doctrine of Russian pre-revolutionary civil law, various opinions were expressed about the concept of force majeure. So, G.F. Shershevich understood under it "... an event whose action was impossible to predict nor prevent any prudency, no costs" Shershenevich G.F. Textbook of Russian civil law. M., 2006. S. 129 .. According to the expression of D.I. Meyer, insurmountable force - this is "... the randomness of the highest category, any means inevitable ..." Meyer D.I. Russian civil law. M., 2000. P. 245 .. Thus, in the legal literature of the pre-revolutionary period on the issue of the essence of force majeure, a discussion was followed, which continued in the Soviet civilistine.

Legal theories trying to explain the essence of force majeure, did not always follow the direction. According to an objective (absolute) theory of force majeure, the founder of which is the Austrian scientist Adolf Exner, under an insurmountable force is understood as an event that has an appearance in relation to the debtor, as well as its strength and extent, obviously exceeding accidents occurring in life. This theory found a response and among domestic civilists.

In contrast to the objective theory, the German lawyer L. Goldshmidt formulated the subjective (relative) theory of force majeure. Its defining difference is that the external nature of the event is not mandatory for the qualification of a particular circumstance as a phenomenon of force majeure. Under irresistible force is understood as an emergency event that could not be prevented by means of extreme precautionary measures and taking into account specific circumstances that could be expected in a reasonable degree. The insurmountable force on this theory is opposed to the concept of guilt. Subjective theory was distributed in domestic civilistine.

Due to the fact that both objective and subjective theory can not comply with the requirements of the property turnover in practice, the so-called objective and subjective theory of force majeure has developed in the doctrine. Her representative is L. Ennekzerserus, which formulated the following definition of force majeure: "... This is an event that, although it comes from the outside, but to prevent the malicious effect of which it is impossible, despite the measures taken proceeded by a reasonable attitude to the case." It is precisely such a compromise, understanding of the essence of force majeure, most of both foreign and domestic civilists follows.

wines Civil Legal Responsibility