Force majeure
According to German jurisprudence , force majeure (from Latin vis maior ) occurs when an event causing the damage has an external effect, i.e. is not due to the nature of the thing at risk ( objective condition ) and the event is neither averted nor harmless even through the extremely reasonable care can be done ( subjective requirement ).
General
However, it should be noted that the French and English terms are not congruent with German force majeure. The French-legal force majeure ( French force majeure ) is limited in the narrower sense to natural events , but in the broader sense synonymous with the German term; The French legal tradition has a technical term for man-made events ( French cas fortuit ). The English-legal force majeure ( English act of God ; literally "God 's act ") is a sub-case of force majeure, while the technical term force majeure, newly borrowed from French, corresponds more to the German.
Events in the context of force majeure
Force majeure are unavoidable events such as B. Natural disasters of all kinds, in particular earthquakes , floods , storms , volcanic eruptions , but also minor coincidences ( Latin casus fortuitus ) such as riot , blockade , boycott , fire , civil war , embargo , hostage-taking , war , revolution , sabotage , strikes (if these occur during a third party ; example: contract between consumer and airline and strike at air traffic controllers , also in the event of a strike at the airline), terrorism , traffic accidents or, in the industrial sense, production disruptions .
Force majeure usually requires one of these events to occur completely unexpectedly. However, if an event can be expected to occur, such as flooding that occurs over and over again in the same regions, then there is no force majeure. In the event of a traffic accident, force majeure presupposes that the damaging event must have had an external effect on the operation of the vehicle and must have been so extraordinary that the owner or the driver did not have to expect it at all and this event was also not caused by the could avert the greatest care. According to the case law of the BGH on other cases of application of the liability standard of force majeure, this damaging event must have been brought about by elementary forces of nature or by the actions of third parties, must be unpredictable according to human understanding and experience, with economically viable means and also with extreme and, depending on the circumstances, reasonable The expected due diligence cannot be prevented or rendered harmless and cannot be accepted because of its frequency.
The events must also not come from the sphere of one of the contracting parties . A fire that has broken out in a part of a ship in which there are no passenger cabins is closely related to the operation of the ship, so that the organizer cannot invoke force majeure. In general, the dangers of the sea are not a force majeure.
Contract drafting
The case law describes force majeure as an external event that has no operational connection and which cannot be prevented even by the greatest reasonable care . As a rule, the prerequisite is that the events involved have an external effect on the contracting parties and which the contracting parties did not take into account when drafting the contract. If, in such a case, even the greatest possible care cannot prevent the occurrence of the events, force majeure is present.
International trade and contract law wants to regulate all conceivable cases, even if their occurrence is classified as rather unlikely. However, experience with such events has shown that they occur and thus possibly make it impossible to fulfill contracts. However, the conclusion of a - possibly long-term binding - contract obliges the contracting parties to fully fulfill their commitments. Events not foreseen by the contract outside the sphere of influence of the parties can, however, fundamentally change the mutual obligations and even prevent the fulfillment of the contract. In this case, agreements must be made that regulate the handling of these events.
The International Chamber of Commerce (ICC) has published a brochure on this. This brochure, written in English, suggests appropriate contractual provisions for force majeure and unreasonableness ( English "hardship" ). The first revision of this publication, first published in 1985, seeks to balance the legitimate interests of all parties to a contract. The possible events are listed in detail in section 3. If there is therefore force majeure, the fulfillment of individual obligations or even adherence to the entire contract can become unreasonable for the contracting parties; in this case the contracting party concerned will be released from its obligations temporarily or permanently.
Force majeure clauses
In order to avoid disputes or risks of interpretation about possible liability issues, a so-called force majeure clause is integrated in many contracts for the preventive exclusion of liability in the event of extreme unexpected events. In the event of force majeure, this grants one or all contracting parties the right to withdraw from the otherwise binding contract. The clause is capable of displacing the current positive law. While the first part of the clause deals with the definition of cases of force majeure by listing all applicable events in detail and listing the conditions for an exemption from liability, the second part is reserved for the legal consequences. These provide for an exemption from liability for damages, the possible granting of a grace period and the right to terminate or dissolve the contract.
If an event of force majeure occurs, the fulfillment of the contractual obligations is - at least temporarily - suspended. With regard to the distribution of risk, this means that ultimately each of the two contracting parties has to bear the harmful consequences of the disruption or delay in performance. Mutual claims for compensation of the consequences of the risk then do not exist. As a result, the risk is assigned to the contractual partner who is primarily affected by the risk and its damaging consequences. The cancellation of the contractual obligations has the effect that the times of fulfillment cease to apply because the requirement for the due date of the service is missing. One of the contracting parties is not entitled to compensation for failure of the other to fulfill the contract on time. You have to bear the consequences of the delay yourself. If the disruptive event no longer affects the contract, the clause can provide for provisions that enable the contract to be revived.
For example, the internationally applied FIDIC model construction contracts provide for a broad force majeure clause in Section 19.4 that allows as many events as possible to be extended if the completion of the structure is delayed due to force majeure. If the execution of the construction work is interrupted by force majeure and the interruption lasts 84 days in a row or if several interruptions due to force majeure last more than 140 days, the contract can be terminated by either of the contracting parties. In the event of the contract being terminated due to force majeure, the building contractor will receive, in accordance with sub-clause 19.6, reimbursement for the services already carried out as well as reimbursement of the costs for material and equipment orders as well as other liabilities that the building contractor reasonably assumed in anticipation of the completion of the work the dismantling of building aid agencies, the return of the construction equipment and for the repatriation of its personnel.
civil right
In German civil law , force majeure is recognized as a breach of contract. It can lead to the obligee being prevented from enforcing contractual claims because, for example, natural disasters have disrupted communication. In such cases, legal prosecution of contractual claims under German law is suspended as long as the obligee is prevented by force majeure within the last 6 months of the limitation period ( § 206 BGB ).
Travel law
Until June 30, 2018, the law of travel was that according to § 651j BGB a. F. a travel contract could be terminated by the traveler and the tour operator if the trip was made considerably more difficult, endangered or impaired due to force majeure and if this was not foreseeable when the contract was concluded. The organizer then lost the right to the agreed travel price . He could demand reasonable compensation for travel services already provided. The organizer had to take care of the repatriation of the traveler; The organizer and the traveler each bore half the costs of the return transport. The traveler did not have any claims for damages against the organizer.
In a large number of cases, lower-level courts had to deal with the question of whether certain events had already reached the force majeure threshold under travel law. According to this, individual, targeted terrorist attacks are no force majeure, but must escalate to widespread, uncontrollable internal unrest with a civil war-like character. Even well-known riots that lasted a long time before the start of the trip are therefore not considered to be force majeure; because of their predictability, they come under general life risk . Force majeure exists, however, if the tour operator interrupts a trip to the "Turkish Riviera" due to the outbreak of the Gulf War, provided that he could not specifically foresee the war risk that endangers the success of the trip when the travel contract was concluded (here in August 1990). The travel law threshold of force majeure was therefore higher than in other commercial and contract law. A single, targeted terrorist attack is usually enough there to trigger the force majeure clause.
Since July 1, 2018, the risks that cannot be influenced by the tour operator (such as civil war , terrorist attack , tropical storm ) have also been a lack of travel because the tour operator is now liable regardless of fault ( Section 651i (1) BGB). According to § 651H para. 1 and 3 BGB the traveler or the tour operator before departure at any time from the contract without compensation withdraw if unavoidable, extraordinary circumstances occur at the destination or in its immediate vicinity that the implementation of the package or the carriage of passengers to their destination significantly affect (force majeure). Circumstances are unavoidable and exceptional if they are not under the control of the party claiming them and their consequences could not have been avoided even if all reasonable precautions had been taken.
Other areas of law
In road traffic law , the existence of force majeure as the cause of an accident in accordance with Section 7 (2) of the Road Traffic Act (StVG) leads to the exclusion of strict liability for the owner, who is otherwise liable for damage caused in the operation of his vehicle regardless of fault.
In building law , the existence of force majeure according to § 6 Paragraph 2 No. 1 lit. c) VOB / B to extend the execution time for the contractor .
When underwriting in the context of IPOs , capital increases or international loan syndications, such clauses are taken into account in order to protect against events such as September 11, 2001 .
insurance
Many export credit insurance offer in the hedge against political risks, the cover pool of typical events of force majeure. With regard to the scope of insurance, not all cases of force majeure are covered, which is why the individual exclusion of liability through the force majeure clause is of crucial importance. Damage caused by nuclear energy or by environmental impacts within the meaning of the Environmental Liability Act or the Water Resources Act is also not covered.
Legal consequences
If there is force majeure, liability is generally ruled out in the event of damage, because none of the contracting parties is at fault. This also applies in accordance with Section 7 (2) StVG if a traffic accident is caused by force majeure. With force majeure, only those risks are to be excluded that have nothing to do with the vehicle or trailer operation and are therefore not attributable to this in the legal assessment, but exclusively to a third-party event.
Liability despite force majeure is exceptionally possible in the event of default of the debtor ( § 287 BGB ) and the removal of property ( § 848 BGB).
literature
- Andreas Blaschczok: strict liability and risk allocation. Heymanns, Cologne 1998, ISBN 3-452-22472-4 .
- Nils Jansen: The structure of liability law. Mohr Siebeck, Tübingen 2003, ISBN 3-16-147988-2 .
Individual evidence
- ^ Johann Georg Helm, Commercial Code: Large Commentary. Founded by Hermann Staub , Walter de Gruyter Verlag, 2002, ISBN 3-11-016811-1 , p. 255 ( preview in Google book search)
- ^ BGH, judgment of August 21, 2012, Az .: X ZR 146/11
- ↑ BGHZ 62, 351, 354 = BauR 1991, 331, 335
- ↑ a b BGHZ 100, 157 = NJW 1987, 1938
- ^ "ICC Force Majeure Clause 2003 / ICC Hardship Clause 2003", 2nd edition 2003, Publ. 650
- ↑ ICC Force Majeure Clause 2003 (www.Trans-Lex.org)
- ↑ OLG Cologne, judgment of March 18, 1992, Az .: 16 U 136/91
- ↑ Ernst Führich, Basic Knowledge of Travel Law , 2018, p. 77
