“Perfect” force majeure
By 2014, many enterprises formally approached the reflection in force majeure agreements, not mentioning it at all or indicating the standard phrase that a person who violated an obligation is exempted from liability for its violation if it proves that this violation occurred due to force majeure.
Discussions regarding the difference between the terms “force majeure” and “force majeure circumstances” were completed in 2014 by supplementing the Law of Ukraine “On Chambers of Commerce and Industry in Ukraine”, art. 14-1. According to part 2 of this article, the indicated dates were determined identically: force majeure circumstances (force majeure circumstances) are extraordinary and inevitable circumstances, it is objectively impossible to fulfill obligations stipulated by the terms of the contract (contract, agreement, etc.), obligations under legislative and other normative acts.
So, let’s talk about what exactly you need to pay attention to protect your interests in the event of force majeure.
The basics of the ideal display of force majeure in the contract
The list of circumstances of force majeure
An approximate list of force majeure circumstances is contained in Art. 14-1 of the Law of Ukraine “On Chambers of Commerce and Industry in Ukraine”. Also, a list of force majeure circumstances is contained in the Regulation of the certificate of the Chamber of Commerce and Industry of Ukraine and the regional chambers of industry and force majeure circumstances (force majeure circumstances) (hereinafter – the Regulation).
At the same time, the Regulation provides that force majeure circumstances may be recognized that are not listed in the list specified in the Rules, but meet the criteria for force majeure that do not contradict the legislation of Ukraine and are agreed by the parties to the agreement as exempting them from civil liability.
Thus, taking into account the specifics of your enterprise, you can individually determine the list of force majeure circumstances that can affect obligations in such a way that makes it impossible to fulfill it within the time period stipulated by the contract.
It should be borne in mind that such circumstances should be extraordinary (have an exceptional character and be beyond the influence of the parties) and unpredictable (their occurrence or consequences cannot be predicted, in particular at the time of conclusion of the contract).
At the same time, the financial and economic crisis, default, growth of the official and commercial exchange rates of foreign currency against the national currency, non-observance of their obligations by the counterparty of the debtor, absence of goods necessary for the fulfillment of the obligation on the market, absence of the necessary funds from the debtor cannot be considered force majeure circumstances.
Counterparty message on the occurrence of force majeure
The contract must clearly state the procedure for notifying the counterparty about the occurrence of force majeure and the notice period. At the same time, in my opinion, it is worth indicating the actual notice period, since not in all cases of force majeure it will be possible to immediately notify the counterparty in writing, as indicated in some agreements.
Confirmation by the competent authority of the occurrence of force majeure
On confirmation of force majeure, it is necessary to indicate a list of organizations that may indicate the onset of force majeure. For example, if the agreement stipulates that only the Chamber of Commerce and Industry of Ukraine has force-majeure circumstances, then regional chambers of commerce and industry will not be able to confirm their occurrence.
It is also necessary to prescribe the real term of the certificate of the occurrence of force majeure, so that due to the incorrect time spelled out, you will not be responsible for violation of obligations that you could not fulfill as a result of force majeure.
The Regulation provides that in order to obtain a certificate of certification of force majeure, an application is submitted with the relevant documents, which is considered within 7 working days.
Consequences of the onset of force majeure
Another circumstance that should be taken into account in the contract is the corresponding consequences of the occurrence of force majeure circumstances, which must be prescribed based on the specifics of the activity and the characteristics of the contract. Usually, contracts stipulate that the deadline for fulfillment of obligations is postponed or postponed. In practice, there are contracts in which, as a consequence of the occurrence of force majeure, they note the automatic extension of the performance of the obligation.
Also, as a consequence of the occurrence of force majeure circumstances in the contracts, the possibility of early termination of the contract in case of exceeding a certain period of existence of such circumstances can be noted.
Counterparty message about force majeure expiration
For some reason, it is very rare in contracts to meet the obligations of a party for which force majeure circumstances have occurred, to notify the other side of the contract of the end of the existence of such circumstances.