When drafting the contract, a special place is given to the concept of force majeure, especially with regard to commercial operations. A clear understanding of this term will help to avoid penalties and penalties in the event that unforeseen circumstances arise and the obligations undertaken by the contractor were not fulfilled by him.
Acquaintance with the term
The concept of force majeure itself comes from the French force majeure and translates as “force majeure”. If you follow the legal description of the term, then these are events or circumstances that are unforeseen, insurmountable, which do not depend on the will or influence of the parties to the contract. They cannot be foreseen, eliminated or prevented. When they advance, one party to the contract incurs losses to the other. Due to unforeseen circumstances, the party that is responsible may be partially or fully exempted from the fulfillment of the prescribed conditions.
Most often, this term is described more deeply in the documents themselves, refined and detailed, so that subsequently there are as few gaps and questions as possible. For example, what circumstances may be: war, fire, earthquakes, blockades, embargoes. The more detailed each item and action that they lead to is described, the more secure and confident each party to the agreement will feel.
Legal nature
The Russian law does not contain the concept of force majeure, but we can say that it is represented by another term - force majeure circumstances. In any case, these concepts are identical, and each of them carries a common meaning.
Although at the moment there are two groups of scientists who adhere to radically different positions. Some people think that the two terms have characteristics that are different from each other, while others do not see this difference.
In the absence of a fixed legislative act, there is no need to talk about the difference in concepts. Indeed, even from the point of view of studying the origin of the words “force majeure” it is translated as force majeure.
This clause of the contract helps to avoid payments in the event that unforeseen circumstances arise, and you cannot overcome them. Then you are not responsible for fulfilling the terms of the agreement.
Of course, most often obligations arise in commercial relationships, more than ninety percent. But there are other options:
the creation of literary works, inventions and any intellectual property;
material or moral harm;
legal facts that continue with civil rights and obligations.
Force Majeure in Commercial Relations
It must be understood that force majeure does not have any specific, pre-established characteristics. Therefore, the emergence of unforeseen circumstances will have to be proved.
That is, that side of commercial relations that refers to force majeure must prove that in this case it could not influence the course of events. And what exactly for this case circumstances are insurmountable.
In legislative acts there is no clear definition of what force majeure is, there is only a general description of the term and norms that reveal the concept in different areas: taxes, customs. Thus, many questions remain open.
Because of this, additional difficulties may arise in commercial relations if a situation involving force majeure is needed.
The only way out is a more thorough description of the conditions for the occurrence of such circumstances and the options for action to which they can lead. The legal basis for this is the fixed principle of freedom to draw up a contract.
Payment of taxes and force majeure
In the tax code, this concept is considered as a possible basis for exemption from liability for violation of tax legislation. In addition, force majeure may be the reason for the complete elimination of tax payments.
If unforeseen circumstances arise, to confirm them you must obtain a special certificate of the chamber of commerce. The director of the company or the head must sign the application and attach some documents:
A notarized copy of the contract. It is necessary that it already contains clauses on force majeure, specify its types and consequences.
Copies of a detailed description of the work.
Information on volumes that were executed under the contract at the time of the occurrence of unforeseen situations.
Documents confirming the onset of force majeure (from the competent authorities, at least two).
English law
Many companies cooperate with foreign manufacturers, suppliers and firms. But when drafting contracts, the legislation of each country should be taken into account. For example, in the UK force majeure is present only as a contractual condition. It is necessary to strictly prescribe and stipulate each item in order to protect yourself from unforeseen cases.
If there is no such clause in the documents, the doctrine of "futility", or frustration, comes into force. Let us explain: if there are legal, material or physical circumstances unforeseen and insurmountable that deprive the transaction of its original purpose.
An example of such cases is the loss of cargo (fire, theft), which occurred not through the fault of one of the parties.
It is worth noting that this law does not always benefit. If the futility of the contract is recognized, it completely loses any legal force. Both parties are exempt from the conditions. And then no one can claim the payment of forfeits and compensations.
Keeping our finger on the pulse
It is impossible to avoid force majeure circumstances, which is why they are unforeseen. However, in order not to spoil your own image, you must always be ready for decisive action. The first, and one of the main rules that must be followed in case of unforeseen circumstances, is to always be in touch.
Even if it so happened that for some time you cannot fully contact the other side, you should report what happened at the first opportunity. Firstly, perhaps not everything is lost and you will be allowed to retreat from the deadlines or some other conditions. Secondly, silence will only ruin your reputation. In complete ignorance, the other side can imagine all the worst-case scenarios.
Communications
The modern world has given us tremendous opportunities, including in the field of communications. A person who says he couldn’t call or write is either too stupid, or incompetent, or simply finds excuses.
How can I contact the second party:
telephone;
e-mail;
social networks.
In the first stages of a deal, you need to take care of alternative communication methods. Typically, business people have a lot of communication options: several telephones, mailing addresses, secretary data. At the same time, personal pages on social networks should not be excluded, due to unforeseen circumstances, even they can help you out.
Time frame
Quite often, force majeure affects exactly the period of fulfillment of obligations. In this regard, special attention should be paid to time management. There is an unwritten rule of performers - to increase time. If you know that you can cope with the task in a week, increase this period by half, that is, specify one and a half weeks. Such a reserve will allow you to insure yourself in case of force majeure.
Regular work plans, monitoring, phased actions will help to avoid a lot of problems.
Early planning of unforeseen circumstances that may arise will allow both parties to the transaction to protect themselves and save finances.