When drawing up a contract, a special place is given to the concept of "force majeure", especially for commercial transactions. A clear understanding of this term will help to avoid fines and pen alties in case unforeseen circumstances have arisen and the obligations assumed by the contractor have not been fulfilled.
Introducing the term
The very concept of "force majeure" comes from the French force majeure and translates as "force majeure". If you follow the legal description of the term, then these are unforeseen, insurmountable events or circumstances that do not depend on the will or influence of the parties to the contract. They cannot be foreseen, eliminated or prevented. When they come, one party that signed the contract incurs losses to the other. Due to unforeseen circumstances, the party that is liable may be partially or completely exempted from fulfilling the prescribed conditions.
Most often this term is described in more depth in the documents themselves, refined and detailed, so that laterthere were as few gaps and questions left as possible. For example, what could be the circumstances: war, fire, earthquakes, blockades, embargoes. The more detailed each item is described and the actions they lead to, the more secure and confident each party to the agreement will feel.
Legal nature
In Russian legislation there is no concept of "force majeure", but we can say that it is represented by a different term - "force majeure". 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 hold radically different positions. Some believe that the two terms have different characteristics from each other, while others do not see this difference.
In the absence of a fixed legislative act, it is not necessary to talk about the difference between concepts. After all, even from the point of view of studying the origin of the words "force majeure" is translated as an irresistible force.
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 the obligations arise in commercial relationships, more than ninety percent. But there are other options:
- creation of literary works, inventions and any intellectual property;
- causing material or moral harm;
- legal facts thatcontinue their civil rights and obligations.
Force majeure in commercial relations
You need to understand that force majeure does not have any specific, predetermined characteristics. Therefore, the occurrence of unforeseen circumstances will have to be proven.
That is, the side of commercial relations that refers to force majeure must prove that in this case it could not influence the course of events in any way. And that it is precisely for this case that the 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.
This could create additional commercial difficulties if a force majeure situation needs to be resolved.
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 enshrined principle of freedom of contract.
Paying taxes and force majeure
In the tax code, this concept is considered as a possible basis for exemption from liability for violation of tax laws. In addition, force majeure may be the reason for the complete elimination of paymenttaxes.
If unforeseen circumstances arise, to confirm them, you must obtain a special certificate from the Chamber of Commerce and Industry. The director of the company or the manager must sign the application and attach some documents:
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Notarized copy of the contract. It is necessary that it already contains clauses on force majeure, clarifies its types and consequences.
- Copies of detailed job descriptions.
- Inquiries about the volumes that were fulfilled under the contract at the time of the onset 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 drawing up 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. To clarify: if there are legal, material or physical circumstances, unforeseen and insurmountable, which deprive the transaction of its original purpose.
An example of such cases may be the loss of cargo (fire, theft), which occurred through no fault of one of the parties.
It is worth noting that this law is not always beneficial. In case of recognition of the futility of the treaty, it completely loses any legal force. Both parties are exempt from fulfilling the conditions. And then no one can claim the payment of pen alties and compensation.
Keep abreast
It is impossible to avoid force majeure circumstances, that's 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 to follow 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 party, you must report the incident as soon as possible. Firstly, perhaps all is not lost yet and you will be allowed to deviate from the deadlines or some other conditions. Secondly, silence will only ruin the reputation. In total ignorance, the other side can imagine all the worst scenarios.
Communications
The modern world has given us great opportunities, including in the field of communications. The person who says they couldn't call or text is either too stupid or incompetent or just making excuses.
How to contact the second party:
- phone;
- e-mail;
- social networks.
At the first stages of the transaction, you need to take care of alternative means of communication. Usually, business people have a lot of communication options: several phones, postal addresses, secretary data. At the same time, do not exclude personal pages on social networks, due to unforeseen circumstances, even they can help you out.
Time Frame
Quite often, force majeure affects precisely the deadline for fulfilling obligations. In this regard, special attention should be paid to time management. There is an unwritten rule of performers - to increase the time. If you know that you can complete the task in a week, increase this period by half, that is, indicate one and a half weeks. Such a reserve will make it possible to insure against force majeure.
Regular preparation of work plans, control, step-by-step actions will help to avoid a lot of problems.
Planning ahead for unforeseen circumstances that may arise will allow both parties to the transaction to protect themselves and save finances.
