How to identify force majeure, proportions

It cannot be considered force majeure.

The so-called force majeure refers to events that cannot be foreseen, avoided or overcome. If it is caused by the party's own conduct, the party cannot claim force majeure.

In this contract, if the construction is ordered to be stopped because of the public interest, such as the construction of a park, library and other public facilities in the local area, it is a force majeure. However, if the contractor orders to stop work because of illegal development, it is not a force majeure, but a breach of contract caused by its own illegal behavior.

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Force majeure refers to the inability to perform the contract or the inability to perform the contract as scheduled after the signing of the sales contract by not due to the negligence or intention of one of the parties. The party suffering from the force majeure event may be exempted from the responsibility of performing the contract or postpone the performance of the contract on this basis, and the other party shall not be entitled to compensation.

Force majeure usually includes two situations: one is caused by natural causes, such as floods, droughts, blizzards, etc.; The other is caused by social reasons, such as wars, strikes, bans, etc. However, there is no unanimous and clear interpretation of force majeure events in the world.

Which accidents should be regarded as force majeure can be agreed between the buyer and the seller in the force majeure clause of the contract.

Force Majeure Clause.

A force majeure clause is a waiver clause that exempts a party who breaches the contract due to a force majeure event. In general, the contents that should be specified include: the scope of the force majeure event, the time limit for notifying the other party after the occurrence of the event, the institution that issued the supporting documents, and the consequences of the force majeure event.

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In this case, it is determined that there is no breach of contract. Generally, it should be stated in the contract that the seller shall not be liable for the failure of the transaction or the delay in delivery due to force majeure factors other than the seller's will. If it is not written in the contract, there may be a dispute or partial compensation for the unreasonable buyer.

The force majeure clause in the contract for the international sale of goods mainly stipulates: the scope of force majeure, the principles and methods of dealing with force majeure, the time limit and method of notifying the other party of the occurrence of force majeure, the organization publishes supporting documents, and so on. Expand the scope of force majeure in (1).

There is no uniform international interpretation of the scope of force majeure, and the parties can agree on their own when entering into a contract. There are general, enumerative and comprehensive approaches. The general type only makes general provisions on the scope of force majeure; The enumeration is to enumerate the force majeure events one by one; Comprehensive, that is, the combination of enumeration and synthesis, lists the force majeure events that may often occur (such as war, flood, fire, storm, blizzard, etc.), and adds the words "and other force majeure events agreed by both parties".

The comprehensive regulation and control method is clear, specific and flexible. At present, in my import and export ** contract, the comprehensive type is generally used. (2) Handling of force majeure.

After the occurrence of force majeure accidents, it shall be dealt with in a timely manner in accordance with the agreed handling principles. There are two types of consequences of force majeure: one is the termination of the contract, and the other is the delay in the performance of the contract.

How to deal with it depends on the cause, nature, scale and actual impact of the accident on the performance of the contract. (3) Notice and proof of force majeure According to Chinese law, in the event of force majeure, one party must notify the other party in a timely manner and provide the necessary documents to reduce the possible losses within a reasonable period of time, and the other party must obtain the right to be exempted from the right to execute the contract as required due to its failure to bury the side. According to the Convention, if one party fails to notify the other party in a timely manner and causes damage, it shall still be liable for compensation.

In practice, in order to prevent disputes from occurring, force majeure clauses should clearly stipulate the specific notice and the time limit and method for submitting supporting documents. In China, the issuing authority for force majeure is generally issued by the China Council for the Promotion of International ** (China Chamber of International Commerce); If it is provided by the other party, it is mostly issued by the local chamber of commerce or a registered notary public. After receiving the force majeure notice and supporting documents, one party shall promptly reply to the other party whether it agrees.

The determination of force majeure refers to objective circumstances that cannot be foreseen, avoided and cannot be overcome. Unforeseeable means that the law requires that the event constituting force majeure must be unforeseeable to the parties concerned at the time of entering into the contract, and unavoidable means that after the contract takes effect, the parties will deal with the unexpected situation as much as possible in a timely manner, but objectively it is still impossible to prevent the occurrence of the accident, and the inability to overcome means that there is no other way to deal with the event after the event occurs. If the obligor is unable to perform the civil obligation due to force majeure, the obligor shall not bear the civil liability.

1. Can force majeure insurance make a claim?

In insurance, many people will think that force majeure is deductible, but in fact, it can be understood in the insurance clause signed by the policyholder that some force majeure losses can be claimed.

For example, natural disasters in home property insurance need to be differentiated according to the specific type of disaster. Natural disasters including typhoons, heavy rains, typhoons, lightning strikes, floods, snow disasters, mudslides, etc., can be compensated for the damage to houses, house decorations, and indoor property, but ** and tsunami are often included in the deductible liability of this type of insurance.

In terms of social factors, insurance companies cannot compensate for damage to houses and property caused by war, military operations, strikes, riots, riots, terrorist activities, confiscation, and requisition.

At a time when all kinds of environmental pollution are more serious, we can also see that the policy clause specifically points out that nuclear radiation, nuclear pollution, air pollution, land pollution, water pollution and other kinds of pollution are not covered by the warranty liability.

2. The principle of force majeure claims for construction projects.

According to the specification of the bill of quantities, the loss caused by force majeure shall be borne by the employer and the contractor respectively according to the different responsibilities.

1) The damage to the project itself, the loss of personnel and property of a third party due to the damage to the project, and the damage to the materials and equipment to be installed transported to the construction site for construction shall be borne by the employer;

2) The employer and the contractor's personnel** shall be responsible for the unit to which they belong and bear the corresponding expenses;

3) The contractor shall bear the loss of the contractor's construction machinery and equipment and the loss of work stoppage;

4) During the period of suspension of work, the expenses of the necessary management personnel and security personnel who remain at the construction site at the request of the employer shall be borne by the employer;

5) The cost of cleaning and repairing the project shall be borne by the employer.

First, let's take a look at what constitutes force majeure

Force majeure does not simply refer to natural disasters and the like, as long as it meets the objective circumstances that cannot be foreseen, avoided and overcome, it can be regarded as force majeure. So how do we define force majeure?

There is no specific enumeration in China's law, but it is divided into three categories in the theoretical community:

1. Natural disasters, natural disasters are the most typical force majeure phenomena recognized by China's legislation and academic circles, including tsunamis, typhoons, floods, mudslides, etc. It should be noted that not all natural disasters can be used as a reason for exemption from force majeure, and some minor natural disasters that do not have a significant impact on the performance of the parties' obligations do not constitute force majeure.

2. It is difficult for the parties to the contract to foresee changes in policies, laws or administrative measures, and if the parties promulgate new policies, laws or take new administrative measures after the contract is signed, resulting in the failure to perform the contract, the debtor shall be exempted from the responsibility for non-performance of the contract.

3. Abnormal social events, abnormal social events are neither natural disasters nor ** behaviors, but infiltration events caused by group political behaviors in society, such as wars, armed conflicts, strikes, labor shortages, riots, riots, etc., which can be foreseen and avoided for the initiator or manufacturer, and can neither be foreseen nor avoided and overcome for the parties to private law acts.

1. What are the characteristics of force majeure?

1) Force majeure is an event that cannot be foreseen by the parties.

2) Force majeure is an event beyond the control of the parties.

3) Force majeure is an event that is independent of the will and actions of the parties.

4) Force majeure is an objective event that hinders the performance of a contract.

2. What are the force majeure provisions in the logistics contract?

1) The carrier shall be liable for damages for the damage or loss of the goods during transportation, but the carrier shall not be liable for damages if it proves that the damage or loss of the goods is caused by force majeure, the natural nature of the goods themselves or reasonable wear and tear, or the fault of the shipper or consignee.

2) If the goods are lost due to force majeure during transportation and the freight is not collected, the carrier shall not demand payment of the freight; If the freight has been collected, the shipper may request a refund.

According to the above provisions of Chinese law, as a force majeure event, the following three elements must be met.

First, the subjective element, i.e., the occurrence of force majeure is unforeseeable and impossible for the parties to foresee. In other words, when the parties sign the contract, they cannot know when and where the event will occur, nor can they know in advance what will happen. If it can be predicted, forecasted in advance, and measures can be taken to avoid it in advance, it cannot be regarded as force majeure.

Second, the objective element, that is, under the existing conditions, the material and technical forces possessed by the parties are inevitable and insurmountable for the occurrence of the incident. If, judging from the actual conditions, the parties can take measures to avoid and eliminate the occurrence of the event, it cannot be regarded as force majeure.

Thirdly, as a result, the occurrence of the event will inevitably lead to partial or total non-performance and delay in the performance of the contract, or partial or total destruction of the subject matter. If the occurrence of certain objective circumstances does not constitute an obstacle to the performance of the contract, it cannot be regarded as force majeure.

Therefore, to determine whether an objective situation is force majeure, the above three elements must be used as the standard of measurement, and only objective circumstances that have the three elements at the same time can be determined to be a force majeure event, and if one of these elements is missing, the force majeure exemption clause stipulated in the law cannot be applied.

1. What are the main conditions for determining force majeure in the Civil Code?

The Civil Code stipulates that the main conditions for determining force majeure include unforeseeable, unavoidable and insurmountable objective circumstances.

Civil Code of the People's Republic of China

Article 180:[Force Majeure]Where civil obligations cannot be performed due to force majeure, civil liability is not borne. Where the law provides otherwise, follow those provisions.

Force majeure is an objective circumstance that cannot be foreseen, avoided and overcome.

Article 590 [Force Majeure] Where one of the parties is unable to perform the contract due to force majeure, it shall be exempted from liability in part or in whole according to the impact of force majeure, except as otherwise provided by law. If the contract cannot be performed due to force majeure, the other party shall be notified in a timely manner to mitigate the losses that may be caused to the other party, and proof shall be provided within a reasonable period of time.

If force majeure occurs after the party delays performance, it shall not be exempted from liability for breach of contract.

Force majeure shall be determined from the following aspects:

1) Unforeseeability, the force majeure event must be impossible for the parties concerned to foresee at the time of entering into the contract; Dust reeds.

2) inevitability, i.e., objectively not being able to prevent the occurrence of such an unforeseen circumstance;

3) Insurmountability, where the parties cannot overcome the losses caused by an unexpected event;

4) The performance period must occur within the performance period of the contract.

According to Article 180 of the Civil Code implemented in 2021, if a person is unable to perform a civil obligation due to force majeure, he shall not bear civil liability. Where the law provides otherwise, follow those provisions.

Force majeure is an objective circumstance that cannot be foreseen, avoided and overcome.

1. Causes of force majeure.

Force majeure can be caused by natural causes, or it can be caused by man-made or social factors. The former are like floods, droughts, etc., and the latter are wars, bans, strikes, etc. Force majeure is a legal fact.

When a force majeure event occurs, it may lead to the change or extinction of the original economic and legal relationship, such as the need to change or terminate the economic contract; It may also lead to the emergence of new economic and legal relations, such as the property policyholder and the insurance company in the event of a property loss within the scope of insurance due to force majeure. When a force majeure event occurs, the party experiencing the accident shall take all measures to minimize the loss.

When entering into a sales contract, there is generally a force majeure clause, which includes: force majeure content; the time limit and manner for the party that suffers a force majeure accident to submit the accident report and supporting documents to the other party; The scope of responsibility of the party who suffered the force majeure accident. If the contract cannot be performed due to force majeure, the contract shall be terminated.

If force majeure only temporarily hinders the performance of the contract, the method of postponement of performance of the contract is generally adopted. In the event of a force majeure event, the parties shall not be liable for compensation if they have tried their best to take remedial measures but have not been able to avoid the loss.

2. Force majeure precautions.

In the application of force majeure, the following issues are worth noting:

1) Whether or not a force majeure clause is stipulated in the contract does not affect the direct application of legal provisions;

2) The force majeure clause is a statutory exemption clause, and if the force majeure clause is less than the statutory scope, the parties may still invoke the legal provisions to claim exemption; If it is greater than the statutory scope, the excess part shall be deemed to have established a separate exemption clause;

3) Force majeure is mandatory as an exemption clause, and the parties shall not agree to exclude force majeure from the exemption cause.

4) Exemption from liability for force majeure. If the contract cannot be performed due to force majeure, the liability shall be partially or completely exempted according to the impact of the force majeure. However, there are the following exceptions:

Liability for delay in monetary debts shall not be relieved by force majeure; Force majeure that occurs during the period of delay in performance is not exempt from liability.