Force majeure clause is stipulated in the contract due to force majeure such as a party is unable to perform all or part of the contract obligations, waive all or part of the responsibility. The other party shall have a claim for damages. Therefore, the force majeure clause is an escape clause.
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No. 2
Force majeure clause is stipulated in the contract due to force majeure such as a party is unable to perform all or part of the contract obligations, waive all or part of the responsibility. The other party shall have a claim for damages. Therefore, the force majeure clause is an escape clause. (1) the concept of force majeure clause. Force majeure clause is to require the parties after the conclusion of the contract can not be predicted in its contracts, can not be avoided, can not control the accidents that can not perform the contract or not on track to fulfill the contract, subject to force majeure, the party may be exempted from the responsibility to fulfill the terms of the contract. (2) constitute a force majeure, accidents should have the conditions: ① accidents are occurring after the signing of the contract; ② accidents are the parties can not be foreseen, can not be avoided, and uncontrollable. Force majeure incidents include two cases, one is caused due to natural forces, such as floods, storms, droughts, earthquakes, etc.; other social causes, such as war, blockades, the government bans; ③ accidents caused by negligence or no fault of the parties and other subjective factors. (3) the legal consequences of force majeure and results. By 1980, "United Nations Convention on Contracts for the International Sale of Goods," the provisions of force majeure the party may terminate the contract without liability or delay in performance. Force majeure and only the fault of the parties while in the presence of the parties only bear the corresponding liability. The result of force majeure after the main contract for the following: ① cancel the contract. In general, if Force Majeure impossible to fulfill the contract, you can cancel the contract. If the sale of specialty food trade, the origin of the special food due to flooding and loss of income, in this case, you can cancel the contract. ② delay in performance. If force majeure is only temporary hinder performance of the contract, can only delay implementation. For example, due to force majeure so that traffic congestion may delay discharge, and so after the opening performance. -------------------------------------------------- ---------- Force majeure The so-called force majeure, in our country, "Civil Law", refers to the "unforeseeable, unavoidable and insurmountable objective conditions." Ability of the parties themselves can not resist and can not prevent the objective situation or accident. Natural causes can lead to a force majeure, and can also be artificial, social factors. The former, such as earthquakes, floods, droughts, etc., which, as the war, the government bans, strikes and so on. Caused by force majeure is a legal fact. When a force majeure after the accident, may lead to changes in the existing economic and legal relations, to eliminate, such as the need to change or lift the economy contracts; may also lead to new economic and legal relations of production, such as property insured in case of force majeure suffered in a covered property loss, and insurance companies have a compensation relationship. When Force majeure after the accident, an accident party shall take all measures to reduce the losses to a minimum. When entering into contract of sale, there are generally the force majeure clause, which include: force majeure content; been one incident of force majeure, the other party to the accident report and supporting documents of the period and Way; force majeure incident side of the responsibility. As a result of force majeure so that the contract can not perform, you should terminate the contract. Force majeure is a temporary obstruction such as the performance of the contract, the general approach taken to perform the contract extension. Any occurrence of Force Majeure, the parties have tried but failed to take remedial measures to avoid loss of cases, can be liable. 1, force majeure 2, the act of God 3, irresistible force 1. Force majeure includes the following situations: (1) natural disasters such as typhoons, floods, hail; (2) government action, such as expropriation, requisition; (3) Social unusual events such as strikes, riots. 2. In the application of force majeure, the following issues are noteworthy: (1) whether the contract agreement the force majeure clause does not affect directly invoked the law; (2) force majeure clause is a statutory exemption clause, agreed to is less than the statutory range, such as the force majeure clause, parties can still invoke the law claim exemption; such as greater than the statutory range, the excess should be considered as another _set_ up the exemption clause; (3) The mandatory provisions of force majeure as a defense, the parties may agree to exclude force majeure beyond the exemptions. 3. Effect of force majeure exemption. Can not perform the contract due to force majeure, in accordance with force majeure, in part or all of the exemption from responsibility. But the following things: (1) monetary obligations due to force majeure delay liability shall not exempt. (2) delay in performance occurred during the exemption does not have the effect of force majeure. 4. Force majeure and accidents. In fact, the Civil Code and contract law were the conditions of the accident as a defense. Therefore, most scholars advocate the accident should not be as exemptions. Refers to the contract when unforeseen, unavoidable and insurmountable objective conditions. Constitute force majeure must have the following elements: A. unforeseen contingencies. Force majeure event must be referred to the parties entered into a contract in the unforeseen event, which occurred after the conclusion of the contract is purely accidental. Of course, this unexpected accident, not the parties can not imagine the event, some accident is not a party can not be predicted. However, due to its probability is extremely small, being negligible the parties to exclude it from the outside of the normal situation, but the result of this accident does occur, and such incidents are still part of unforeseen events. Under normal circumstances, to determine its ability to foresee the occurrence of an event there are two different criteria: First, objective criteria, that is, in some specific circumstances, generally of normal intelligence who could have foreseen, and the parties to the contract on should be foreseen. If the predictions of the kinds of events requires a certain expertise, as long as with this level of expertise of the normal people who can foresee the event the parties to the contract should be predictable. The second is a subjective standard, that is, in some specific cases, depending on the perpetrator's subjective conditions, such as client's age, developmental status, level of knowledge, professional status, educational level and other factors to determine the overall ability of parties to the contract should be expected to . B. does not Objectivity can be controlled. Force majeure event must be the incident because the debtor can not control the result of objective reasons, the debtor in the event of neither the subjective intent, and no-fault, can not stop it on a subjective place. Because the debtor may be attributable to non-reason produces its own events, if we can overcome it through the subjective efforts, we must strive to do, or not enough to relieve their debt. Force majeure event unpredictability and chance it is impossible to determine its full extension of the list, not exhaustive in nature may occur in humans and various contingencies. So, even though countries in the world can recognize the force majeure exemption, but not exactly a country that provides the scope of force majeure, habits and awareness of the law and because different countries have different understanding of the scope of force majeure. According to China's practice of international trade practices and the interpretation of the law in most countries, the scope of force majeure event has two main parts: one from natural causes of natural phenomena, such as fires, droughts, earthquakes, wind, snow, landslides, etc.; Second, the social causes of social phenomena, such as war, unrest, government intervention, strike, embargo, market conditions and so on. In general, the natural phenomena and the war, serious unrest in countries seen as a force majeure event is the same, but outside of these events man-made obstacles, such as government intervention, not licensing, strikes, market price volatility, and government ban, embargo and government behavior classified as force majeure events often cause controversy. Therefore, the parties agreed in the contract should specify the scope of force majeure. In fact, all countries allow the parties to agree in the contract scope of force majeure. To agree the scope of force majeure is actually equal to the custom Disclaimer. The parties entered into these terms, there are three general ways: one is the general style. That in the contract only in general terms the meaning of force majeure, non-specific list of events that may occur. If the contract is signed, the objective situation has changed, its meaning the two sides dispute cases handled by the arbitration body or court interpretation of the meaning of the contract according to the occurrence of the objective situation constitutes as force majeure; the other is the list type. That in the contract to the events of force majeure have _set_ out, any place that constitutes a force majeure event listed, all occurred events not listed in the contract, that does not constitute a force majeure event; third is an integrated type, that is contract both in general and the specific meaning of force majeure, also cited the scope of force majeure events. Force majeure clause is a disclaimer that the force majeure event and remove the default as the party's breach of contract. General should be required to include: the scope of a force majeure event, notify the other party after the incident period, documents issued by the institutions and the consequences of force majeure events. China's import and export of the force majeure clause in the contract, according to the scope of force majeure provisions of different, mainly in the following three ways: 1. The general style, that force majeure event for general tips, such as "due to force majeure, and not to perform the contract or delay in fulfilling the contract may bear liability for breach of the party, but should immediately notify the other party by telex or fax, and XX days to provide air registered letter to each other the China International Trade Promotion Committee issued a certificate '. 2. Enumerated type, which provides that each type of force majeure event. Such as "because of the war, earthquakes, floods, fires, storms, reasons not to perform the contract or delay a party to the contract not assume liability for breach of ......" 3 multi-purpose, about the general type and list type are combined, such as "because of the war, earthquake, flood, fire, storm or other force majeure reasons, the party is unable to perform the contract not assume liability for breach of ......" Integrated approach is the most common way. Both parties signed the contract, sometimes there will be some accidents affecting performance of the contract, in order to avoid unnecessary conflicts, the parties shall enter into force majeure clause in the contract. First, the meaning of force majeure What is Force Majeure (Force Majeure), countries are not consistent interpretation. China's law that force majeure is unforeseeable, unavoidable and insurmountable objective conditions. Press the "United Nations Convention on Contracts for the International Sale of Goods," explained, is beyond the control of non-parties, and there is no reason to expect their best to take into account the conclusion of the contract or to avoid or overcome it or its consequences can not fulfill its contractual obligations obstacles. Accordingly, the force majeure is defined as occurring after the establishment of the contract, not due to intentional or negligent party caused by its occurrence and consequences of the parties can not be foreseen, can not control, unavoidable and insurmountable. Caused by force majeure for two reasons: First, natural causes such as floods, storms, earthquakes, droughts, storms and other forces of nature beyond the control of human caused disasters; Second, social reasons, such as war, strikes, government injunction other cause. In practice, the identification of force majeure is very strict, with commodity price fluctuations, exchange rate changes and other normal trade risk distinguished. Second, the international sale of goods in the force majeure clause Force majeure clause is stipulated in the contract of sale due to force majeure a party is unable to perform all or part of the contract obligations, waive all or part of the performance of its responsibilities, the other party may have for damages. Therefore, the force majeure clause is an escape clause. International sale of goods in terms of the main provisions of force majeure: the scope of force majeure, the principles and methods of dealing with force majeure, after the occurrence of force majeure notice to the other terms and methods, and supporting documents issued by the institutions. (A) the scope of force majeure On the scope of force majeure, there is no international uniform interpretation, the parties entered into the contract can be agreed between themselves. Generally have a general type, list-style-type three kinds of requirements and integrated approach. The scope of the general type of force majeure as a general requirement; list-style is a force majeure event list them; integrated approach, which lists should be open and integrated approach combining the force majeure event may occur frequently (such as war, earthquakes, floods, fires, storms , snow, etc.) listed at the same time, with the "force majeure and other agreed event" of the motion. Multi-purpose requirements method, which is clear, specific, have some flexibility. At present, I import and export trade contracts, in general, integrated style. (B) the processing of force majeure Force majeure after the accident, treatment principles should be agreed in time for processing. The consequences of force majeure, there are two: one is to terminate the contract, one is the extension of the contract. How treatment should be considered cause of the accident, the nature, scale and its impact on the actual performance of the contract arising from the impact may be. (C) the notice and proof of force majeure China's law, when the force majeure occurred, the party is not required for performance rights to obtain exemption, you must promptly notify the other party, and within a reasonable time to provide the necessary documentation in order to reduce possible losses to the other party. Press the "United Nations Convention on Contracts for the International Sale of Goods", if a party does not timely notice to the other damage, is still liable. In practice, in order to prevent disputes occur, the force majeure clause should be clearly defined and specific notice of the deadline to submit documents and methods. A certification body for force majeure, in China, generally by the China Council for the Promotion of International Trade (China Chamber of International Commerce) issued; as provided by the other, then most of the local Chamber of Commerce by the notary or registration issued by the agency. The other party received notice of force majeure and supporting documents, regardless of consent or not, should promptly. 1) must promptly notify the other party, and within a reasonable time to provide the necessary documentation in order to reduce possible losses to the other party. Press the "United Nations Convention on Contracts for the International Sale of Goods", if a party does not timely notice to the other damage, is still liable. 2) The best in the force majeure clause should be clearly defined and specific notice of the deadline to submit documents and methods. 3) receipt of notice of force majeure and supporting documents, regardless of consent or not, should promptly.