Due to the Corona pandemic or the Ukraine war, the concept of force majeure or higher force is flourishing in business law. However, not everything can be justified by higher force.
Crises like the Corona pandemic or the Ukraine war have a significant impact on the economy. Additional problems lead to supply bottlenecks or the breakdown of supply chains. As a result, it is becoming increasingly difficult for many companies to fulfill their contractually assured services. This is often justified with force majeure, but not every supply bottleneck constitutes higher force, says Michael Rainer, Attorney, MTR Legal law firm.
Higher force generally occurs in the case of unforeseeable and unavoidable events that are beyond the control of the contractual partner and cannot be avoided even with reasonable and acceptable means. However, this is by no means a free pass for the parties to not fulfill their contractual obligations. This is also demonstrated by a ruling of the Berlin Higher Regional Court dated May 24, 2022 (Case No.: 21 U 156/21).
In the underlying case, a property developer had committed to handing over an apartment ready for occupancy to the buyer by June 30, 2018, through a notarized property development contract. In fact, the apartment was only handed over to the buyer about two years later, on July 6, 2020. Due to the delayed completion of the apartment, the buyer had to move into a rental apartment and demanded compensation from the developer for the incurred costs.
The property developer at least partially rejected responsibility for the delayed handover of the apartment. Due to the Corona pandemic, foreign construction workers could not enter Germany between March and July 2020. Additionally, during this period, there were supply bottlenecks, and building materials could not be delivered.
This argumentation was not accepted by the Berlin Higher Regional Court. The developer must specifically demonstrate which severe and unforeseeable circumstance impacted the construction project to cause the delay. He must illustrate how and for what duration the work processes were disrupted. Furthermore, he must also consider construction-time-favorable circumstances such as prioritizing certain services. A general invocation of higher force is insufficient. Since the developer could not meet these requirements, the court convicted him to pay damages.
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