Force majeure or acts of God have gained greater significance in commercial law, particularly in international trade relations, due to crises and disrupted supply chains.
Whether due to the COVID-19 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 conflict potential, especially in international trade relations. Invoking force majeure can be a suitable means to defend against claims for damages when contracts cannot be fulfilled due to the crises. However, not everything can be explained by force majeure, says Attorney Michael Rainer, the contact person for commercial law at MTR Legal.
Under German law, the debtor’s performance obligation can be excluded according to § 275 BGB if the performance is impossible for them and everyone else and they are not responsible for this hindrance. This is the case with wars, pandemics, or natural disasters, but the creditor is also comprehensively protected by various legal provisions, so that this path is often not suitable for defending against claims for damages.
Force majeure is not defined in German law. It is generally assumed in the case of unpredictable and unavoidable events that are beyond the control of the contracting party and cannot be avoided with reasonable and acceptable means. Natural disasters, wars, or pandemics can certainly fall under force majeure. However, since force majeure is not legally regulated in German law as in other countries, the framework conditions for force majeure should be contractually agreed upon between the parties. In accordance with these contractual agreements, arrangements for claims for damages can also be made.
Care should be taken that the contractual regulations are not only general but that the prerequisites for force majeure are presented as detailed as possible. If the prerequisites for the occurrence of force majeure have been agreed legally-securely, various legal consequences can result from them. For example, deadlines can be extended, performance obligations suspended or excluded, or the contract even dissolved.
Attorneys experienced in commercial law provide counsel at MTR Legal.
