Considerations Related to the Exemption from Liability in Case of Occurrence of a Force Majeure Event Or of Unforeseeable Circumstances

Considerations Related to the Exemption from Liability in Case of Occurrence of a Force Majeure Event Or of Unforeseeable Circumstances

Recent Advances in Financial Planning and Product Development Considerations related to the exemption from liability in case of occurrence of a force majeure event or of unforeseeable circumstances DIANA GORUN School of Law Romanian-American University 1B Expozitiei, Bucharest ROMANIA [email protected] http://www.rau.ro Abstract: - The liability of the debtor for the damages caused by the unfulfilled obligation is exempted when the prejudice is determined by the force majeure or the unforeseeable circumstances. Key-Words: - Liability, force majeure, unforeseeable circumstances, debtor, obligation. 1 Introduction The force majeure and the unforeseeable they are different and they must be analyzed circumstances are defined by article no. 1351 of the separately. new Romanian Civil Code as follows: The legislature has classified in a different Paragraph no. 1: If the law does not provide way the force majeure and the unforeseeable otherwise or the parties do not agree on the contrary, circumstances as causes of liability exemption. the liability is exempted when the prejudice is determined by the force majeure or the unforeseeable circumstances. 2 Problem Formulation Paragraph no. 2: The force majeure is any external event, unpredictable, absolutely invincible and inevitable. 2.1 Expressing the law issue Paragraph no. 3: The unforeseeable circumstances is represented by the event that According to article 1351 paragraphs 1 and 4, cannot be foreseen or prevent by the person that although both the force majeure and the would be held liable if the event did not occur. unforeseeable circumstances are causes of liability Paragraph no. 4: If, in compliance with the exemption, the two legal notions are different and law, the debtor is exempted from its contracting have their own effects. liability for any exempted in the event of force majeure. In the previous Romanian Civil Code, in 2.2 The difference between the force majeure force until 01.10.2011, these two denominations and the unforeseeable circumstances were used together as synonyms; however, we can find that the current Civil Code defines them Bearing in mind that, in accordance with the separately in article 1351 paragraphs 2 and 3. provisions of article 1351 paragraph 2 of Civil Related to this different approach of the two Code, “the force majeure is any external event, notions, the issue raised in that to know that if the unpredictable, absolutely invincible and inevitable”, two denominations take into account a single the occurrence of a force majeure event excludes in exonerating cause of civil liability or each of them full liability, if this was the exclusive cause of the are related to a different notion, with its own damage. significance and content. It is natural that, while the The unforeseeable circumstances are defined, law-maker regulated separately these two notions, in accordance with paragraph 3 of the same article, ISBN: 978-1-61804-261-3 43 Recent Advances in Financial Planning and Product Development as an event that cannot be foreseen or prevent by the flood or the earthquake cannot be considered a case person that would be held liable if the event did not of force majeure in those territories or geographical occur. That means that in this case the civil areas where such catastrophes are a normal and contracting liability can be excluded. habitual situation. In this regard, the legal practice Unlike the unforeseeable circumstances, the indicated that the frequent landslides, torrential force majeure has always an external character and rains, frost are not unforeseeable events, as they it is an unpredictable, absolutely invincible and cannot be considered as cases of force majeure. [3] inevitable event. Related to the cause of the force majeure The causes of force majeure are the natural agreed by contract, the parties can agree by a deed incontrollable and unpredictable events (earthquake, that certain event to be assimilated to the force eruption of volcanoes, storm, tsunami, flood, fire, majeure. typhoon, bird flu, any other catastrophe, war, However, we have to specify that including terrorist attack, coup d'état, etc.) in the contracting liability case, proofing a case of In order to be retained as a cause of force force majeure does not result in the liability majeure, it is not enough for the event to be external exemption under the following circumstances: as compared to the will of the parties and - the debtor was put in delay to execute the unpredictable, but it should be nevertheless obligations taken (therefore it did not fulfilled its impossible to be prevented and overcome by the contracting obligations in due time), and the event parties. Force majeure requires an objective of force majeure occurred after that moment, impossibility character. This provision impossibility therefore the debtor will have the obligation to of an event can be appreciated by reference to the assume its liability as, if it would have executed its prudent person depositing all the care for his work. obligations in due time, the cause of force majeure [1] would have occurred after the performance; [4] We should bear in mind that in case of the - when by a contractual convention/clause, the notion related to the unforeseeable circumstances, it debtor expressly assumed its liability. is not the external feature of the event that occurs. It The conclusion that can be drawn related comprises natural phenomena, if they do not have to the difference between the force majeure and the an extraordinary feature, absolutely unpredictable, unforeseeable circumstances must take into account invincible and inevitable, therefore they cannot be the provisions of article no. 1352 Civil Code, considered within the scope of the force majeure; according to which “The fact of the victim in itself the events and internal phenomena, meaning that and the fact of the third party exempts the liability those events that are originated or are produced in even if they do not have the characteristics of the the scope of activity of the person held liable; the force majeure, only those of the unforeseeable anonymous causes and non-culpable facts. circumstances, however only in the case that, Therefore, in order for the liability according to the law and agreement of the parties, exemption to occur, all the circumstances that the liability is exempted”. The conclusion is that the prevent the performance of the contract must be force majeure always and entirely excludes the independent of the parties will and to be liability, but not any unforeseeable circumstances incontrollable. It is difficult to consider generally if due to the exemption of liability. a certain event is or not a force majeure event and if it exempts or not the debtor in case the undertook 2.3 Case under discussion obligations are not fulfilled. In the judicial practice, the events of force The plaintiff trading company SC B called majeure were considered to be natural catastrophes into justice the trading company SC A bearing in (earthquakes, droughts, storms, floods, wars, mind that on 20.06.2012, the plaintiff SC B as the spontaneous strikes, embargo etc.). Such events Purchaser and the defendant SC A as the Seller cannot be considered absolutely as force majeure, signed the purchase agreement for Romanian black however, they must be taken into consideration on oil sunflower seeds, in bulk for the 2012 crop, each case, assessing if they fulfill or not the amounted 300 metric tons for the price of $500 per conditions of such event which can exonerate the metric ton, following the delivery to be made during debtor from its liability. [2] the interval 10.08.2012-30.09.2012. According to For example, it was considered that the the contract, the Seller undertook the obligation to ISBN: 978-1-61804-261-3 44 Recent Advances in Financial Planning and Product Development deliver the respective quantity of products, and no As a matter of fact we are talking about a provision was made for the Purchaser to make any sale-purchase agreement subjected to a sale of advance payments. future merchandise in accordance with article no. By the writ of summons submitted to the 1658 paragraph 1 of Civil Code – sale of a future Buzau Court of Law, the plaintiff company B crop – meaning merchandise from a limited requested the obligation of the defendant company category (crop of year 2012, not 2011 or 2010, A to pay the amount of $44,100 as damages included in the own production made by SC A). representing the amount of the damaged occurred We support this affirmations as when the for SC B following the failure of performing the contract was signed – June 2012– the oil sunflower contractual obligations by SC A, by its own fault. seeds crop afferent for year 2012 was in progress, On 30.07.2012, SC A submitted a notification therefore the contracted merchandise at the time did by fax informing SC B that an event occurred, not actually exist, following to grow into the future, classified as force majeure and which made the when it reached its maturity and being harvested. selling company impossible to deliver the products Under such circumstances, there is no on the term established. In this case, due to the doubt that the object of the contract was a future aggressive and extended drought, the oilseed good. Although the parties classified the contract as sunflower production was 99% affected, which lead a sale-purchase agreement, in fact its legal to the impossibility to deliver the products. SC A classification is production agreement, as SC A was also submitted a deed called “force majeure not an intermediary which only sells the respective certificate”, issued by the Giurgiu County Chamber products, but a producer. of Commerce, Industry and Agriculture, where SC A is headquartered, which certifies that in July 3.2.

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