Recent years have shown how unpredictable the circumstances that affect business activities and the ability of the parties to fulfill their contractual obligations can be. War, pandemic, emergencies – all this can jeopardize the stability of obligations even in carefully regulated contracts. In such conditions, the concept of force majeure acquires special importance, as it gives the parties the opportunity to reasonably refer to circumstances beyond their control. More on the practical application of force majeure norms during business activities – read below.
What is considered force majeure?
Part 2 of Article 141 of the Law of Ukraine "On Chambers of Commerce and Industry in Ukraine" defines force majeure as extraordinary and unavoidable circumstances that prevent the fulfillment of obligations, in particular natural disasters, wars, terrorist acts, epidemics and other unforeseen events. The legislator indicates a wide range of such circumstances, which include not only natural disasters, but also socio-political events that significantly complicate or make impossible the fulfillment of contractual obligations.
Conditions of influence of force majeure on the performance of the contract
Force majeure may affect the performance of a contractual obligation under the following conditions:
- impossibility of fulfilling an obligation. If force majeure makes the fulfillment of an obligation impossible or significantly complicate it;
- confirmation of force majeure. The parties to the contract must provide evidence to confirm that a force majeure has occurred;
- force majeure notification. The party affected by force majeure must notify the other party of the occurrence of the force majeure and its impact on the performance of the contract.
Court practice
The Supreme Court's case law has formed clear positions on force majeure and its impact on the fulfillment of contractual obligations.
The Supreme Court considered certain issues related to force majeure, in particular, who must prove the existence of force majeure, what exactly needs to be proven, the lack of automatic evidentiary force in force majeure, and the need to notify the other party of force majeure. It was repeatedly emphasized that it is necessary to prove not only the fact of the existence of force majeure, but also their direct impact on the specific case of performance of the obligation, taking into account the individual nature of such circumstances.
One of the main conclusions of the Supreme Court is that force majeure circumstances are not of a prejudicial nature, that is, their presence is not an automatically recognized basis for exemption from liability for failure to fulfill obligations. In the resolution of November 30, 2021 in case No. 913/785/17, the court indicated that the party that invokes force majeure as a reason for the impossibility of fulfilling an obligation must prove not only the very fact of the occurrence of such circumstances, but also that they were extraordinary and unavoidable in this particular case.
Thus, it is solely the party that has breached the obligation to prove the existence of force majeure. It must provide convincing evidence confirming both the existence of force majeure and its direct impact. These criteria are universal, but their application always requires an analysis of the specific situation.
Another significant aspect is that the mere fact that a party provides evidence to support force majeure is not sufficient to automatically recognize its rightness.
One of the latest examples of case law regarding force majeure and its impact on the performance of contractual obligations is a new ruling of the Supreme Court, composed of judges of the Cassation Economic Court, in case No. 910/6519/24 dated February 18, 2025. One of the parties to the contract invoked force majeure as a reason for non-fulfillment of its obligations. The court drew attention to the need to promptly notify the other party of the occurrence of force majeure, as well as to whether the party took all possible measures to minimize the consequences of such circumstances. One of the conclusions of this decision is that force majeure is not an automatic reason for exemption from the performance of obligations. The court emphasized that the party invoking force majeure must prove not only the fact of its occurrence, but also that these circumstances objectively made the performance of the contract impossible, and not simply made it more difficult.
That is, it is important to clearly define the terms of the contract that regulate the actions of the parties in the event of force majeure.
