Force majeure or higher force gains greater significance in business law and particularly in international trade relations due to crises and disrupted supply chains.
Whether due to the Corona pandemic or the Ukraine war, ongoing crises have caused significant economic difficulties in many industries and continue to do so. Supply chains are disrupted and pose potential conflicts, especially in international trade relations. Invoking force majeure can be a suitable means to defend against claims for damages if contracts cannot be fulfilled due to the crises. However, not everything can be explained by force majeure, says lawyer Michael Rainer, point of contact for business law at MTR Legal.
According to German law, the debtor’s obligation to perform may be excluded according to § 275 BGB if the performance is impossible for him and everyone else, and he is not responsible for this obstacle to performance. This is the case in wars, pandemics, or natural disasters, but the creditor is also comprehensively protected by various statutory provisions, so this approach is often not suitable to ward off claims for damages.
Force majeure is not defined in German law. It is generally assumed in cases of unforeseen and unavoidable events that are beyond the control of the contracting party and cannot be avoided by reasonable and appropriate means. Natural disasters, wars, or pandemics can certainly fall under force majeure. However, since force majeure is not legally regulated in German law, unlike in other countries, the conditions for force majeure should be contractually regulated between the parties. In accordance with these contractual regulations, agreements on claims for damages can also be made.
It is important to ensure that the contractual regulations are not only general but that the conditions for force majeure are presented as detailed as possible. If the conditions for the occurrence of force majeure have been agreed upon in a legally secure manner, various legal consequences can result from this. For instance, deadlines might be extended, obligations to perform suspended or excluded, or the contract might even be dissolved.
Experienced lawyers in business law advise at MTR Legal.
