21.1 Failure to perform, delay or discontinue performance by either party with respect to the obligations imposed by this Agreement shall not be considered a breach of the Contract or give rise to any liability if it is due to force majeure. Force majeure means any extraordinary, unforeseeable or, if foreseeable, unavoidable event, such as labour disputes, fires, mobilization, public health emergencies, insurrections, wars, natural disasters, the prohibition for a government not to supply a national company or organization, damage caused by the application of extraterritorial laws, embargoes and freezes imposed by third countries have been imposed on one of the Parties, including those that may enter into force or remain in force after the signing of this Agreement, which may impede the partial or full performance by the Parties of their obligations under this Agreement. The party invoking force majeure must inform the other party in writing within thirty (30) days of the date of occurrence of the event or events constituting force majeure. This notification shall be accompanied by a document issued to a competent authority and duly certified. The document containing the above information will be sent by courier within thirty (30) days of the date of the first notification. Under Florida law, a party wishing to invoke a force majeure clause must prove that the force majeure event was unforeseeable and that the force majeure event occurred beyond its control. This means that the claimant must prove that the event could not have been avoided or overcome, and that there can be no fault or negligence on the part of the claimant. [11] 9.1 If a party to this Agreement is unable to perform this Agreement due to force majeure after the signing of this Agreement, the Party affected by Force Majeure must notify the other Party within ten working days of the date on which force majeure occurs, and this notice must indicate the occurrence of a case of force majeure and declare the event as Force Majeure. At the same time, the party affected by force majeure will do its best to take measures to reduce losses caused by force majeure and protect the legitimate rights and interests of the other party. Force majeure refers to objective circumstances that are unforeseeable, unavoidable and insurmountable at the time of the conclusion of the contract.
If, during the term of this Agreement, a case of force majeure (including, but not limited to, war, riot, earthquake, natural disasters, etc.) results in non-compliance with all or part of the terms of this Agreement, the defaulting party will not be liable for any breach. Both parties are required to continue to comply with the other terms of this Agreement, which are not affected. If the subject matter of this Agreement can no longer be fulfilled due to force majeure, this Agreement will be automatically terminated and both parties will bear their own losses. Each party will immediately inform the other party of the occurrence of a case of force majeure and will submit, within 14 days, to the other party a written declaration issued by the notary describing the event of the period of force majeure. Otherwise, the party invoking force majeure may not delay or avoid the performance or non-performance of the contract due to a case of force majeure. The party affected by force majeure will take reasonable steps to mitigate the damage. 6.4 If the contract cannot be performed due to a case of force majeure, liability is released in whole or in part, depending on the influence of force majeure. However, if a case of force majeure occurs after the party has delayed performance, the party is not exempt from liability.
There are four necessary elements of a force majeure clause: Article 15.12 Force majeure. The case raised the question of whether it was a breach of the implied duty of good faith and fair trade (as claimed by the owner of the painting) or simply of the auction house benefiting from a skillfully negotiated risk allocation. This was certainly an unfortunate and potentially avoidable outcome for the owner, who should have paid more attention to a unilateral force majeure clause. (The case also reinforces the benefits of a fifth element of a well-worded force majeure clause: a termination provision. The owner would have been in a stronger position if the auction house had been forced to decide whether or not to terminate the contract at the time of the cancellation of the auction, rather than taking advantage of the opportunity to sell the painting at auction during COVID-19.) The party concerned should be expressly obliged to minimise the disruption caused by a case of force majeure. EXAMPLE 3 – Distinction between political events and other cases of force majeure Should we end in case of force majeure? If a maximum period is set during which the effects of a single event or an overall period of force majeure may persist during the duration of the concession before one or both parties can act to withdraw from the project or obtain compensation for the damage suffered. NB – Pay attention to the formulations that speak of the continuation of the force majeure event for a certain period of time – the duration of the force majeure inhibitory effects is important. The theory is that the parties have insurance and other resources to fill them during a certain period of force majeure, but that they should eventually have the right to terminate. If it agrees to continue the project despite a persistent force majeure event, the project company`s remuneration will often increase accordingly in the event of force majeure in order to create an incentive to stay.
The concept of force majeure comes from French civil law and is a recognized norm in many jurisdictions that derive their legal systems from the Napoleonic Code. In common law systems, such as those of the United States and the United Kingdom, force majeure clauses are acceptable, but need to be more explicit about the events that would trigger the clause. .