Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
Recibido el 14/04/23 Aceptado el 06/06/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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OIRALITH
M. C
HIRINOS
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ORTILLO
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
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Vol. 41, Nº 79 (2023), 433-452
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Force majeure as grounds for exemption
from liability: International approach
and Ukrainian experience in terms of the
military conict
DOI: https://doi.org/10.46398/cuestpol.4179.29
Inna Apalkova *
Vladimira Dobrovolska **
Yuliia Pavlova ***
Svitlana Yakymchuk ****
Volodymyr Yarmaki *****
Abstract
The article is devoted to the study of the category of “force
majeure” and the characteristics of the exemption from liability in
circumstances of force majeure. In addition, the denition of force
majeure in international normative acts is studied, the categories
of force majeure, irresistible force and state of emergency are compared.
The regime of grounds for exemption from liability and the place of force
majeure in it are considered. The peculiarities of changing and terminating
the contract as a result of a signicant change in circumstances in case of
force majeure in accordance with the legislation of European countries and
Ukraine are analyzed. The article pays special attention to the qualication
of circumstances as force majeure in the context of the anti-terrorist
operation and the war in Ukraine. It is concluded that the concept of force
majeure has its origin in Roman law and today it is known both in the civil
and common law systems. From the time of Roman law, there was both a
legislative regulation of exemption from liability for the occurrence of force
* PhD., Associate Professor of Civil Procedure Law Department of National University “Odessa Law
Academy”, Odesa, Ukraine. ORCID: https://orcid.org/0000-0002-4413-6677. Email: marynak762@
gmail.com
** PhD., Associate Professor of Civil Procedure Law Department of National University “Odessa Law
Academy”, Odesa, Ukraine. ORCID ID: https://orcid.org/0000-0002-9304-3792. Email: v.dobro@
ukr.net
*** PhD., Associate Professor of Civil Procedure Law Department of National University “Odessa
Law Academy”, Odesa, Ukraine. ORCID ID: https://orcid.org/0000-0002-1990-6297. Email:
pavlova1293@gmail.com
**** PhD., Associate Professor of the Department of Civil law and Process Leonid Yuzkov Khmelnytskyi
University of Management and Law, Khmelnytskyi, Ukraine. ORCID ID: https://orcid.org/0000-
0003-1848-494X. Email: s-yakimchuk@univer.km.ua
***** PhD., Associate Professor of the Department of Constitutional and International Law of the
Educational and Scientic Institute of Law and Cybersecurity of the Odessa State University of Internal
Aairs, Odesa, Ukraine. ORCID: https://orcid.org/0000-0001-5924-1085. Email: yarmakvova@ukr.
net
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Inna Apalkova, Vladimira Dobrovolska, Yuliia Pavlova, Svitlana Yakymchuk y Volodymyr Yarmaki
Force majeure as grounds for exemption from liability: International approach and Ukrainian
experience in terms of the military conict
majeure circumstances, as well as a contractual practice of formulating
exemption from liability clauses.
Keywords: force majeure; irresistible force; exemption from liability;
performance of obligations; war in Ukraine.
La fuerza mayor como causal de exención de
responsabilidad: enfoque internacional y experiencia
ucraniana en materia de conicto militar
Resumen
El artículo está dedicado al estudio de la categoría de «fuerza mayor»
y las características de la exención de responsabilidad en circunstancias
de fuerza mayor. Además, se estudia la denición de fuerza mayor en los
actos normativos internacionales, se comparan las categorías de fuerza
mayor, fuerza irresistible y estado de emergencia. Se considera el régimen
de causales de exención de responsabilidad y el lugar de la fuerza mayor en
el mismo. Se analizan las peculiaridades de cambiar y rescindir el contrato
como resultado de un cambio signicativo en las circunstancias en caso de
fuerza mayor de acuerdo con la legislación de los países europeos y Ucrania.
El artículo presta especial atención a la calicación de las circunstancias
como fuerza mayor en el contexto de la operación antiterrorista y la
guerra en Ucrania. Se concluye que el concepto de fuerza mayor tiene su
origen en el Derecho romano y hoy es conocido tanto en el sistema civil
como en el del common law. Desde la época del Derecho romano, existía
tanto una regulación legislativa de la exoneración de responsabilidad por
la concurrencia de circunstancias de fuerza mayor, como una práctica
contractual de formulación de cláusulas de exoneración de responsabilidad.
Palabras clave: fuerza mayor; fuerza irresistible; exención de
responsabilidad; cumplimiento de obligaciones; guerra
en Ucrania.
Introduction
The category of civil liability is one of the key ones in civil law, as civil
liability is a sanction that ensures the proper fulllment of obligations and
guarantees the stability of civil circulation. However, based on the principle
of justice, in some cases a person can be exempted from responsibility
for non-performance or improper performance of an obligation. This
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Vol. 41 Nº 79 (2023): 433-452
is possible, as a rule, in situations where certain external circumstances,
independent of the debtor, aected the course of execution. Therefore,
grounds for exemption from liability as a way of protecting the rights and
interests of legal relationship participants are of particular importance for
ensuring the balance of the interests of legal relationship participants.
The central place in the system of grounds for exemption from civil
liability is held by force majeure. The problem of legal regulation of force
majeure has a long history, dating back to Roman law, where force majeure
was considered an equitable basis for exemption from liability.
The concept of “force majeure” (“irresistible force”) (vis major, forse
majeure, act of God) has existed for millennia and means a higher force,
“God’s providence”, an event that surpasses in strength those human forces
that can be opposed to it and therefore exempts from responsibility. This
concept was known to the Roman private law of the classical period, the
civil law of the countries of continental Europe, and the Anglo-American
civil law. In the decisions of July 12, 1929 in The Hague in the cases of
Serbian and Brazilian loans placed in France, the Permanent Chamber of
International Justice recognized force majeure as a general principle of law.
With the development and complication of private legal relations, the
issue of releasing the debtor from liability for breach of obligation as a
result of force majeure circumstances has acquired special importance,
therefore they often become the object of scientic discussions. In addition,
the problem of clarifying the essence and list of circumstances that can be
considered force majeure in the civil law of Ukraine is reinforced by war
conict and European integration processes.
Given the signicant importance of the concept of force majeure
(irresistible force) for civil theory, civil legislation and law enforcement
practice and its importance in terms of the war conict in Ukraine, the
purpose of this article is the study of the force majeure category, drawing of
special attention to the war conict as a ground for exemption from liability.
1. Emergence of the “force majeure” category in
Roman private law
In classical Roman law, the debtor’s responsibility for non-fulllment
of contractual obligations was determined objectively: the obligation to
compensate damages occurred without ascertaining the reasons for the non-
fulllment of the obligation, that is, regardless of whether the debtor was at
fault or force majeure acted. Later, the principles of objective responsibility
were replaced by the principles of subjective responsibility of the debtor.
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Inna Apalkova, Vladimira Dobrovolska, Yuliia Pavlova, Svitlana Yakymchuk y Volodymyr Yarmaki
Force majeure as grounds for exemption from liability: International approach and Ukrainian
experience in terms of the military conict
If the debtor was not guilty of non-fulllment of the contractual
obligation, i.e., took care of the obligations assumed, he was released
from responsibility. In such cases, non-fullment was attributed to force
majeure (vis majeure). They meant all unpredictable and unforeseeable
circumstances, the consequences of which could not be eliminated, even if
they could be foreseen (Pukhan & Polenak-Akimovskaya, 1999).
The case under Roman law was divided into simple case (casus minor)
and force majeure (casus major or vis major). Force majeure (vis major)
and case (casus) were recognized under Roman private law as grounds for
exemption from liability. The case meant either the destruction of the thing
or other impossibility of performance in the absence of the debtor’s fault.
Force majeure included unforeseeable, spontaneous and such that cannot
be eliminated, forces of nature that led to the impossibility of fullling the
obligation and exempted the debtor from responsibility (Pidoprygora &
Kharytonov, 2003).
It should be noted that along with the main principle of the debtor’s
subjective responsibility in Roman law, the principle of objective
responsibility continued to operate in relation to a number of obligations.
This responsibility was called custodia and was applied in service contracts,
contracts between shipowners, innkeepers, and some lease contracts. In
the mentioned cases, the debtor’s responsibility came even for an accident.
However, in Romanistic literature, the issue of innocent liability under
Roman law is disclosed in sucient detail. In particular, the analysis of
Digests regarding lawsuits against shipowners and owners of hotels and
inns allows us to conclude that, contrary to the generally accepted point
of view, tortious liability of shipowners, owners of hotels and inns arose
regardless of fault. There is nothing about liability without fault in Digests,
but about liability for the actions of third parties (service personnel of
the ship or hotel and regular guests of the hotel). According to scientists,
there is nothing similar to general, unconditional and fault-independent
responsibility (Passek, 2003).
The provisions of Roman law with regard to liability for intentional
non-fulllment of an obligation are of particular interest. This rule had
an imperative coercive nature and could not be eliminated by a prior
agreement of the parties. It was created in view of the fact that the parties,
upon concluding the contract, began to formulate a disclaimer of liability.
Thus, in Roman law, there was both a statutory regulation of exemption
from liability due to the occurrence of circumstances of force majeure, and
a contractual practice of formulating clauses on exemption from liability.
Moreover, it was prohibited by law to enter into preliminary agreements
on exemption from liability for intentional breach of obligation (Dziuba,
2003).
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As a result of the reception of Roman private law in the continental
systems of law, the clause on the release from liability of the debtor due
to force majeure was established. The term “force majeure” rst appeared
in the French Napoleonic Code of 1804 (Vasiliev, 1993). According to Art.
1148 of this Code, there are no grounds for recovery of any damages if, due
to force majeure or unforeseen circumstances, the debtor was unable to
give or do what he was obligated to do, or did what he was forbidden to do
(Kulagin, 1997).
German law establishes the principle according to which the
impossibility of performance due to the occurrence of force majeure
circumstances excludes the liability of the debtor (the debtor is released
from the performance of the obligation if it became impossible due to
circumstances for which the debtor is not responsible and which occurred
after the obligation arose) (Chung, 2017).
2. Denition of force majeure in international legal acts
In order to nd out what force majeure is, it is worth to analyze
authoritative international sources, namely the Vienna Convention of 1980
(United Nation, 1980). Article 79 (1) of the Vienna Convention of 1980
stipulates that a party is not liable for failure to perform any of its obligations
if she proves that it was caused by an obstacle beyond her control and that
it was unreasonable to expect it to take into account this obstacle at the
time of concluding the contract or to avoid or overcome this obstacle or
its consequences. However, such exemption remains only for the period of
existence of such an obstacle. Also, the Vienna Convention of 1980 species
the notication of the other party about the occurrence of such obstacles as
a mandatory condition for exemption from liability.
The notion of “force majeure” (“irresistible force”) is not mentioned in
the Vienna Convention of 1980 at all. It seems that international private
law deliberately does not use this concept, and accordingly, the signs of
emergency and exclusivity. Such an approach gives the parties of the
contract the opportunity to independently determine the circumstances
that exempt them from responsibility. However, in the Vienna Convention
of 1980 the signs of unpredictability (it was unreasonable to expect the
person to take the obstacle into account) and inevitability (the obstacle is
beyond her control) are preserved.
Paragraph 2 of the specied article states that if non-fulllment of an
obligation is caused by the non-fullment of a third party engaged by a
debtor to perform the contract, the debtor is released from liability only
if the person engaged by him or her would also be released from liability.
Thus, provisions of the Vienna Convention of 1980 create the most favorable
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Inna Apalkova, Vladimira Dobrovolska, Yuliia Pavlova, Svitlana Yakymchuk y Volodymyr Yarmaki
Force majeure as grounds for exemption from liability: International approach and Ukrainian
experience in terms of the military conict
regulation of relations between the participants of a commercial agreement.
According to the Vienna Convention of 1980, for exemption from liability
on the basis of force majeure, the simultaneous presence of the following
grounds is necessary:
• non-performance must be caused by an obstacle beyond the control
of the party claiming exemption from liability;
• the party claiming exemption from liability could not reasonably
be expected to take this obstacle into account when concluding a
contract for the international sale of goods;
• the party claiming exemption from liability could not reasonably be
expected to avoid this obstacle or its consequences;
• the party claiming exemption from liability could not reasonably be
expected to overcome this obstacle or its consequences.
It is worth noting that, wanting to provide sucient exibility to the
Vienna Convention of 1980, its developers used abstract categories, in
particular, instead of the concepts of “force majeure”, “irresistible force”
the category “obstacle” was used, and the expression “out of control” was
used instead of “fault” (Kondratieva, 2012).
In international public law, force majeure means a situation in which an
entity is forced to act contrary to an international obligation as a result of
force majeure or an unforeseen event beyond control. International practice
knows many cases of references to force majeure as a basis for justifying
non-fulllment of obligations. Most often, such situations arise when the
aircraft of one state invades the airspace of another state as a result of
damage or weather conditions. The UN Convention on the Law of the Sea
emphasizes that passage through the territorial sea includes stopping and
anchoring as they are “necessary due to force majeure” (United Nations,
1998).
The UN General Assembly Resolution 56/83 (United Nations, 2001-
2022) with regard to force majeure establishes that the illegality of an act
of a state that does not comply with an international obligation of that
state is excluded in case this act was made due to force majeure, i.e., the
manifestation of an irresistible force or an unforeseen event, beyond the
control of that state, which make it materially impossible under the given
circumstances to fulll the corresponding obligation. This statement does
not apply if: a) the force majeure situation is caused, either entirely or in
combination with other factors, by the behavior of the state that refers to it;
or b) the state has assumed the risk of such a situation occurring.
As a result, a force majeure situation must meet certain conditions. First,
the relevant act must be determined by force majeure or an unforeseen event
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beyond the control of the state. Secondly, the fulllment of the obligation is
materially impossible.
Therefore, “force majeure” means that there must be an obstacle which
the state was unable to avoid or which it could not prevent. “Unforeseen
event” means that its occurrence could not be predicted or was extremely
unlikely. In this case, it is necessary to establish whether the breaching party
could reasonably be expected to have taken into account the possibility of
the relevant event. If such an event can be foreseen, then the defaulting
party may be considered to have assumed the risk of performance of the
obligation if such an event occurs. The possibility of predicting the event is
assessed at the time of acceptance of the obligation. At the same time, the
party must take all the measures at its disposal for the proper fulllment of
the obligation, and not passively observe the occurrence of an event that is
the reason for its non-fulllment.
Force majeure or an unforeseen event must be the reason for the material
impossibility of fullling the obligation, which may be due to a natural event,
for example, an emergency landing of an airplane in hurricane conditions
on the territory of a foreign state, or human activity, for example, leaving
a part of the territory under state control as a result of a rebel. Cases of use
of force, coercion by one state against another may also fall under the force
majeure situation. Force majeure does not apply to situations in which the
fulllment of the obligation has become more dicult, for example, as a
result of a political or economic crisis. This also applies to situations caused
by the negligence or inaction of the respective state.
In international law, in addition to force majeure, a state of emergency is
also distinguished, which is provided for by a number of conventions. Thus,
the Convention of the United Nations Organization on the Law of the Sea
allows the stopping and parking of ships at anchor when passing through
the territorial sea of a foreign state only when they are due to a state of
emergency (Article 18.2). Similar provisions are contained in conventions
on prevention of sea pollution.
The state of emergency refers to a specic case when a person, whose
behavior is attributed to the state, is in a situation of extreme danger both
for herself and for the persons entrusted to her. Larger-scale disasters such
as earthquakes, oods and other emergencies may be recognized as force
majeure or a state of necessity.
In contrast to force majeure, a person acting in a state of emergency is
acting in a situation of “relative impossibility” of fullling an international
obligation. This situation diers from the state of necessity in that it is not
about choosing between compliance with the norms of international law
and ensuring the legitimate interests of the state. The interest here directly
lies in saving people’s lives, regardless of their citizenship.
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Inna Apalkova, Vladimira Dobrovolska, Yuliia Pavlova, Svitlana Yakymchuk y Volodymyr Yarmaki
Force majeure as grounds for exemption from liability: International approach and Ukrainian
experience in terms of the military conict
In contrast to a disaster, a state of necessity does not pose a danger to
the lives of people entrusted to a state ocial, but a serious danger to the
main interests of the state itself or the international community. The state
of necessity arises when there is a conict between a signicant interest and
the obligation of the state, which refers to the state of necessity.
3. Force majeure in the system of grounds for
exemption from liability
The grounds for exemption from civil liability are divided into formal
(legal norms establishing these grounds) and material (objectively
existing life circumstances constituting the content of these norms). The
set of material grounds for exemption from civil liability, which has been
established in the relevant legal norms, constitutes the material and legal
content of the grounds for exemption.
Substantive legal grounds for exemption from civil liability for breach
of contract are life circumstances enshrined in the norms of civil legislation
that give rise to the right of a person who has not fullled or improperly
fullled an obligation to be exempt from liability.
Material and legal grounds for exemption from civil liability are divided
into subjective and objective. Subjective grounds include the presence or
absence of the debtor’s fault. The criterion for the presence or absence
of guilt in specic civil legal relations is the degree of care and prudence
required by the nature of the obligation and the conditions of economic
turnover. Objective material and legal grounds for exemption from civil
liability include irresistible force and various forms of behavior of the
participants in the liability relationship.
Force majeure includes: natural events not related to voluntary human
behavior (oods, earthquakes, blizzards, etc.); phenomena of social life
that do not depend on the behavior of the parties of an obligation (military
operations, strikes, suspension or restriction of cargo transportation, etc.).
The forms of behavior of the participants in the legal relationship of liability
include: dissemination of true information that disgraces honor, dignity
and business reputation; skipping the statute of limitations; violation of the
rules for using the purchased goods, etc. (Reznichenko & Tserkovna, 2009).
All material grounds for exemption from civil liability can also be
divided into several groups: general, special and institutional (separate).
The rst are established in general provisions on obligations, special
ones are contained in separate institutions of civil law. Thus, the owner
of the source of increased danger is released from liability if the source
of increased danger got out of control of the owner as a result of illegal
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actions of third parties. At the same time, the overlap of general, special
and separate grounds for exemption from civil liability is not excluded in
positive law, which complicates their systematicity and interdependence.
Material and legal grounds for exemption from civil liability can be
subjective or objective in nature. The rst type of grounds for exemption
from civil liability includes the presence or absence of fault of the causer
of damage or the victim, and the second - various forms of behavior of the
causer of damage, the victim, as well as events (circumstances of social life)
that do not depend on their behavior.
In the civil literature, an unjustied confusion of subjective grounds for
exemption from civil liability with force majeure is allowed, although civil
law establishes them as dierent (independent) life circumstances that give
rise to the right to exemption from liability.
The procedural and legal form of the grounds for exemption from
liability is a method of implementation of the material and legal grounds for
exemption from civil liability established by the civil procedural legislation.
An analysis of the provisions of the Civil Code of Ukraine reveals that
the grounds for exemption from civil liability include: creditor’s fault;
case; irresistible force; other circumstances causing the impossibility of
fullling the obligation, if they arose through no fault of the debtor. The list
of grounds for exemption from civil liability for damage may be expanded
due to necessary defense, extreme necessity, force majeure, and fault of the
victim (Tserkovna, 2008).
4. Change and termination of the contract as a result of a
signicant change in circumstances in the event of force
majeure
Force majeure can be the reason for a signicant change in circumstances,
which is the basis for terminating or changing the contract, and ultimately
leads to the change or termination of the obligation. Legal regulation of
consequences of a signicant change in the circumstances that exist during
the conclusion of the contract is, as a rule, built on the basis of one of
the two key principles of contract law: the principle that contracts must
be fullled (pacta sund servanda) or the clause about the immutability
of circumstances (clausula rebus sic stantibus). The legislation of many
countries contains norms according to which a change in circumstances
can be a justication for changing the contract, when the preservation of
the contract in its original form leads to extraordinary results incompatible
with justice (Zweigert & Katz, 1993).
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Inna Apalkova, Vladimira Dobrovolska, Yuliia Pavlova, Svitlana Yakymchuk y Volodymyr Yarmaki
Force majeure as grounds for exemption from liability: International approach and Ukrainian
experience in terms of the military conict
The main consequences of a signicant change in the circumstances that
the parties were guided by when concluding the contract are: 1) a change
in the contract itself, i.e., a change in the terms of the contract (and as a
result the obligations between the parties) while keeping the contract itself
in force; 2) termination of the contract by agreement of the parties. Thus,
in the USA, the doctrine of “impossibility” of execution is used. In order
to establish the fact of the non-occurrence of certain events as the main
prerequisite for the conclusion of the contract, it is necessary to nd out
which of the parties to the contract assumed the risk of the given event.
When concluding contracts for the manufacture and delivery of goods
at pre-xed prices, the seller, for example, assumes the risk of an increase
in production costs within normal limits. However, if in the course of
extraordinary events, the value of the goods for the seller increases sharply,
tenfold, the court can determine that the seller did not assume such a risk,
based on the fact that the non-occurrence of the extraordinary event was a
“main prerequisite” for the conclusion of the contract (Komarov, 1991). In
the considered situation, it is possible to say either that the debtor did not
take such a risk, or that the court has the right to remove this risk due to its
extreme burden.
The common law doctrine diers signicantly from the civil one and
proceeds from the fact that the modication of the contract undermines
certainty and changes the risks allocated in the contract. Common law
provides that termination of obligations under a contract is possible only
when a change in circumstances makes performance under the contract
illegal or impossible (Beatson, 2002).
In Great Britain, the doctrine of “frustration” (frustration of purpose, loss
of the contract’s meaning) is applied. This doctrine is applied only in cases
where the performance of the contract turned out to be impossible due to
the destruction of the object of the contractual obligation through no fault
of the parties. In such cases, the court makes a just and reasonable decision
with regard to the parties, which is required by the new circumstances. The
court can make such a decision only if the change in circumstances does not
fall under the denition of “normally considered” risk.
In contrast to the doctrine of frustration of the contract, “impossibility” as
a basis for exemption from liability consists in the impossibility of fullling
the obligation provided for in the contract due to unforeseen circumstances
that the parties could not foresee at the time of concluding the contract.
French law, as a general rule, is reluctant to change the terms of a contract,
even when circumstances have changed. The principle of performance of
obligations has priority over ex post modify claims with a few exceptions.
In particular, public contracts can be changed or terminated by a court;
a contract can be modied if the circumstance standing in the way of the
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performance of the obligation could not have been foreseen: for example,
after the First and Second World Wars, Parliament allowed the courts to
stop treaties that were concluded before the beginning of either of those
wars.
Nowadays, civil jurisdiction courts in France do not recognize the
doctrine of a signicant change in circumstances (imprevidsion), which was
the reason for the very detailed elaboration by the parties of the terms of the
contract on the grounds for exemption from liability. French law calls force
majeure and “unforeseen event” (cas fortuit) grounds for exemption from
liability (Castro, 2020). Thus, French law does not allow the termination
of the contract on the basis of a signicant change of circumstances, while
common law allows the termination of the obligation, and the Principles of
European Contract Law allow the judicial procedure for the modication
and termination of the contract in this case.
In Sweden, the court has the right to change the contract in case the
obligation for one of the parties becomes unreasonably burdensome, for
example, when the circumstances have changed after the contract has
entered into force, the court has the right to change the contract both in its
entirety and its individual provisions.
Italian law gives a party to a contractual obligation the opportunity to
terminate the contract if its performance becomes excessively burdensome
(dicult) as a result of unforeseen circumstances (Vyacheslavov, 2007).
The UNIDROIT Principles (Principles of European Contract Law) are
formulated in such a way that each party to the contract fullls its obligations
even if the performance has become more onerous, regardless of whether
the value of the performance has increased for the debtor or the value of
the performance has decreased for the creditor (Sanjur, 2022). However, in
case of a signicant burden of performance for the debtor due to a change
in circumstances, the principles provide for the obligation of the parties to
enter into negotiations with the aim of adapting the contract or terminating
it. The complication according to Principles of UNIDROIT has place when
events that signicantly change the balance of contractual obligations either
due to an increase in the cost of performance or a decrease in the value of
the performance received by the party occur, as well as:
a) events that arise or become known to the disadvantaged party after
the conclusion of the contract;
b) events that could not reasonably have been taken into account by the
disadvantaged party prior to the conclusion of the contract;
c) events beyond the control of the disadvantaged party; and
d) if the risk of occurrence of such events was not assumed by the
disadvantaged party (UNIDROIT, 2016).
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If the parties did not reach an agreement within a reasonable period of
time, the court has the right to: terminate the contract, make changes to
the contract, as well as decide on the issue of compensation for damages
caused by the party’s refusal to agree on the changed terms of the contract
or unilateral refusal (Rose, 2022).
In Ukraine, in accordance with Art. 652 of the Civil Code of Ukraine, a
signicant change in the circumstances from which the parties proceeded
when concluding the contract is the basis for its modication or termination,
unless otherwise stipulated by the contract or does not follow from the
essence of the obligation. At the same time, a change in circumstances is
recognized as signicant when they have changed to such an extent that,
if the parties could have reasonably foreseen it, the contract would not
have been concluded by them at all or would have been concluded under
signicantly dierent conditions.
In accordance with Part 2 of Art. 652 of the Civil Code of Ukraine in
order to change or terminate a contract based on a signicant change in
circumstances, four conditions must be met: 1) at the time of concluding
the contract, the parties assumed that such a change in circumstances
would not occur; 2) the change in circumstances is due to reasons that the
interested party could not eliminate after their occurrence with all the care
and prudence required of it; 3) performance of the contract would violate
the balance of property interests of the parties and would deprive the
interested party of what it was counting on when concluding the contract;
4) it does not follow from the essence of the contract or business practices
that the risk of changing circumstances is borne by the interested party.
If the parties have not reached an agreement on bringing the contract
into line with the circumstances that have changed signicantly, or on
its termination, the contract may be terminated, and on the grounds
established in Part 4 of Art. 652 of the Civil Code of Ukraine, - amended
by a court decision at the request of an interested party in the presence of
the following conditions at the same time: at the time of concluding the
contract, the parties assumed that such a change in circumstances would
not occur; the change in circumstances is due to reasons that the interested
party could not eliminate after their occurrence with all the care and
prudence required of it; performance of the contract would violate the ratio
of property interests of the parties and would deprive the interested party
of what he was counting on when concluding the contract; it does not follow
from the essence of the contract or the customs of business turnover that
the risk of changing circumstances is borne by the interested party.
Thus, changing the contract in connection with a signicant change in
circumstances is allowed by a court decision in exceptional cases when the
termination of the contract is contrary to public interests or will cause damage
to the parties that signicantly exceeds the costs necessary to perform the
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contract on the terms changed by the court. In case of termination of the
contract as a result of a signicant change in circumstances, the court, at the
request of any of the parties, determines the consequences of termination
of the contract based on the need for a fair distribution between the parties
of the costs incurred by them in connection with the performance of this
contract.
It should be noted that the provisions of Part 2 of Art. 652 of the Civil
Code of Ukraine, as well as in non-state collections of private and contract
law (Principles of European Contract Law, Principles of International
Commercial Contracts UNIDROIT), do not impose on the interested party
the need to take actions to overcome the causes caused by a signicant change
of circumstances. A similar requirement is contained in Article 8:108 of the
Principles of European Contract Law (Commission on European Contract
Law, 1995-2002) and in Clause 1 of Article 79 of the UN Convention on
Contracts for the International Sale of Goods of 1980, but only with regard
to circumstances of force majeure / obstacles (excuse due to impediment):
the party does not bear liability for a breach of contract which is caused by
a force majeure event which was beyond its control and which could not
reasonably have been taken into account at the time of the conclusion of the
contract, or which it could not have overcome or prevented.
The rest of the non-state collections of private and contract law, in
particular UNIDROIT Principles of International Commercial Contracts
or Principles of European Contract Law, Principles, Denitions and Model
Rules of European Private Law (Ch. Von Bar et al., 2009) provide only
the requirement of the absence of a causal relationship between change of
circumstances and actions of the interested party.
Accordingly, Part 3 of Art. 653 of the Civil Code of Ukraine, in case
of change or termination of the contract, the obligation is changed or
terminated from the moment of reaching an agreement on the change or
termination of the contract, unless otherwise established by the contract
or determined by the nature of its change. If the contract is changed or
terminated in court, the obligation is changed or terminated from the
moment the court decision to change or terminate the contract enters
into force. Thus, the contract can be terminated or changed because the
parties could not reasonably foresee the relevant risks when concluding
it or because the risk assumed by the debtor turned out to be extremely
burdensome and, in any case, signicantly violates the property interests
of one of the parties.
Therefore, if there is a signicant change in the situation, the
responsibility of the parties remains. This means that the party whose
right has been violated has the right to claim damages. Therefore, upon
termination of the contract due to signicantly changed circumstances, the
parties may demand not only a fair distribution of the real loss, but also the
lost prot (Palmer, 2022).
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Force majeure as grounds for exemption from liability: International approach and Ukrainian
experience in terms of the military conict
5. Anti-terrorist operation and war in Ukraine
as force majeure circumstances
In Ukraine, the concept of force majeure is dened in the Law of
Ukraine “On Chambers of Commerce and Industry in Ukraine” (Verkhovna
Rada, 1998). According to the specied Law, force majeure circumstances
are extraordinary and unavoidable circumstances that objectively make it
impossible to fulll the obligations stipulated in the terms of the contract or
obligations under legislative and other regulatory acts.
Among such circumstances are mentioned: threat of war, armed conict
or serious threat of such conict, including but not limited to enemy
attacks, blockades, military embargoes, actions of a foreign enemy, general
military mobilization, military actions, declared and undeclared war, acts of
a public enemy, disturbance, acts of terrorism, sabotage, piracy, disorder,
invasion, blockade, revolution, mutiny, uprising, mass riots, introduction
of curfew, quarantine established by the Cabinet of Ministers of Ukraine,
expropriation, forced seizure, seizure of enterprises, requisition, public
demonstration, strike, accident, illegal actions of third parties, re,
explosion, long interruptions in the operation of transport, regulated by
the terms of relevant decisions and acts of state authorities, closure of sea
straits, embargo, prohibition (restriction) of export/import, etc.
Circumstances qualied as force majeure also cover the ones caused
by exceptional weather conditions and natural disasters, namely: epidemic,
strong storm, cyclone, hurricane, tornado, ood, accumulation of snow, ice,
hail, frost, freezing of the sea, straits, ports, passes, earthquake, lightning,
re, drought, subsidence and landslide, other natural disasters, etc. (Nekit,
2021).
Therefore, terrorist acts, armed conicts and wars are recognized as
force majeure in Ukraine.
However, the analysis of judicial practice in Ukraine leads to the
conclusion that the anti-terrorist operation, which lasted in Ukraine from
2014 until the start of a full-scale war, was not always recognized as force
majeure. In some cases when, in connection with hostilities, citizens faced
the problem of returning loans or bank deposits, entrepreneurs carrying
out economic activities in areas where hostilities were or are being waged
could not fulll their contractual obligations, pay taxes, submit reporting,
some citizens still cannot receive compensation from insurance companies
for lost property, and at the same time, such cases were often justied by
the occurrence of force majeure circumstances.
Such situations are possible because in order to conrm the presence
of force majeure, it is necessary to obtain the opinion of the Chamber
of Commerce and Industry of Ukraine (a special body that conrms the
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presence of force majeure circumstances). However, such a body issues
a conclusion only if an interested person submits all the documents
conrming: a) the occurrence of a force majeure circumstance; b) that force
majeure is the reason for the impossibility of fullling obligations (a causal
relationship is proved); c) that before the occurrence of force majeure
circumstances, the terms of the contract were properly fullled.
The absence of a conclusion of the Chamber of Commerce and Industry
does not give rise to the release of interested persons from liability, in
this case the contractual obligations are subject to fulllment in full and
within the prescribed period. Therefore, if a bank or an insurance company
refuses to fulll its obligations under the contract without a conclusion of
the Chamber of Commerce and Industry on the occurrence of force majeure
circumstances, such a refusal should be considered as a violation of the
contractual terms.
Therefore, the very fact of carrying out the Anti-Terrorist Operation
(hereinafter - ATO) did not become a basis for exemption from liability for
non-fulllment of accepted obligations. In each specic case, an interested
party had to prove that the ATO aected (or could aect) the fulllment of
obligations. Circumstances indirectly related to the ATO, such as a drop in
demand in enterprises due to the ATO for products, reduction in turnover,
lack of funds to repay the loan, etc., were also not considered force majeure,
since the lack of money does not belong to force majeure circumstances.
After the start of a full-scale war in Ukraine, the letter of the Chamber of
Commerce and Industry of Ukraine No. 2024/02.0-7.1 dated February 28,
2022 was published, according to which force majeure circumstances from
February 24, 2022 until their ocial end are extraordinary, unavoidable and
objective circumstances for legal entities and/or natural persons under the
contract, tax and/or other obligations, the fulllment of which has occurred
in accordance with the terms of the agreement, contract, legislative or other
regulatory acts and the implementation of which became impossible within
the set time due to the occurrence of such force majeure circumstances.
For many parties to civil agreements the mentioned letter became the
basis for sending a demand for the conclusion of additional agreements,
in which the parties either decided on the possibility to continue deadlines
for fullling obligations (production, delivery, processing of goods, etc.)
or waived any nes in case of delay in the fulllment of obligations, etc.
(Malinovska et al., 2020).
Such a position aected the fulllment of contracts in the conditions
of Russian aggression (Ruiz, 2022). In particular, in insurance contracts,
the parties may refer to force majeure as a basis for releasing them from
liability for non-fulllment of the terms of the contract (relevant force
majeure clauses with reference to war are always included in insurance
contracts in practice).
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Force majeure as grounds for exemption from liability: International approach and Ukrainian
experience in terms of the military conict
However, force majeure circumstances do not release a party from the
obligation under the contract, but are only a legitimate reason to delay the
fulllment of such an obligation until the end of their validity and not bear
liability for such delay (in the form of nes). In addition, the mere fact of
hostilities or the introduction of wartime restrictions does not exempt a
party from liability, if such circumstances do not directly prevent a person
from physically or legally fullling a specic obligation under the contract.
It is under such circumstances, for example, that the insurer can delay
the insurance payment (following the procedure for notication of force
majeure and its conrmation), but will have to make it when the eect of
force majeure on him ceases (Antoniv, 2022).
Force majeure does not allow to avoid the fulllment of obligations,
including nancial ones (for example, rent payments), but it allows to
postpone obligations or exempt the business entity from liability for their
non-fulllment during the existence of such circumstances. If the property
is damaged before transfer to the tenant (rentee), force majeure can only be
applied if the property can be replaced. In the case of the uniqueness of the
subject of rent (hire), the contract is subject to change or termination due
to the impossibility of performance.
If the property was destroyed or damaged as a result of hostilities after
being transferred for rent for a certain period, the payer of the rent is not
released from the obligation to pay it before the end of this period under the
conditions established by the contract. If such property is transferred for
rent for an indenite annuity, the payer may demand the termination of the
obligation to pay the annuity or a change in terms of the payment.
According to the contract of lease, the lessee is exempt from payment
for the entire time during which the property could not be used due to
circumstances for which he or she is not responsible. However, there are
other options: (pre)suspend the contract in accordance with the principle
of freedom of contract, change the form, periodicity of the rent, reduce the
rent with the justication of a signicant reduction in the ability to use the
property, terminate the contract by referring to the force majeure clause in
the contract or warning the counterparty in 1 or 3 months for the lease of
movable and immovable property, respectively (Zagnitko, 2022).
Conclusions
The concept of force majeure originated in Roman law and today is
known both to the civil and common law systems. From the times of Roman
law, there was both a legislative regulation of exemption from liability
due to the occurrence of force majeure circumstances, and a contractual
practice of formulating clauses on exemption from liability. As a result of
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the reception of Roman private law, the clause on the release from liability
of the debtor due to force majeure was established.
The analysis of international legal acts reveals that, although the force
majeure rules are established in public international law, states are very
careful about the limitation of liability. French law does not allow termination
of the contract on the basis of a signicant change in circumstances, English
and US law allow for the termination of the obligation, and the Principles
of European Contract Law allow a judicial procedure for changing and
terminating the contract in this case.
The contract can be terminated or changed because the parties could
not reasonably foresee the relevant risks when concluding it or because the
risk assumed by the debtor turned out to be extremely burdensome and, in
any case, signicantly violates the property interests of one of the parties.
Therefore, if there is a signicant change in the situation, the liability of the
parties remains. This means that the party whose right has been violated
has the right to claim damages. Therefore, upon termination of the contract
due to signicantly changed circumstances, the parties may demand not
only a fair distribution of the real loss, but also the lost prot.
In cases of force majeure circumstances, the deadline for the parties to
fulll their obligations under the contract is postponed in accordance with
the time during which such circumstances and their consequences are in
eect.
Ukraine has developed a special practice regarding force majeure
circumstances, provoked initially by the anti-terrorist operation in the
East of the country as a result of aggression on the part of the Russian
Federation, and from the beginning of 2022 also by the full-scale war that
the Russian Federation launched against Ukraine. However, despite the
fact that wars, armed conicts and terrorist acts are recognized as force
majeure circumstances at the legislative level in Ukraine, this fact alone
is not enough to recognize the event as a force majeure circumstance that
exempt from responsibility.
To conrm force majeure circumstances, it is necessary to apply to
a special authorized body, the Chamber of Commerce and Industry of
Ukraine, for a conclusion on the presence of force majeure circumstances.
With such a conclusion, the obligation to perform is postponed until the
termination of the force majeure circumstances, and the debtor is released
from responsibility for the delay. These issues are especially relevant for
employment contracts.
However, it is important to note that the force majeure circumstances
do not release a party from the obligation under the contract, but is only a
legitimate reason to postpone the fulllment of such an obligation until the
end of their validity and not bear liability for such a delay (in the form of
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Force majeure as grounds for exemption from liability: International approach and Ukrainian
experience in terms of the military conict
nes). In addition, the mere fact of hostilities or the introduction of wartime
restrictions does not exempt a party from liability, if such circumstances do
not directly prevent a person from physically or legally fullling a specic
obligation under the contract.
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