Force majeure: commercial contracts in times of corona

Force majeure: commercial contracts in times of corona

Do you have contracts with companies in countries affected by delivery restrictions related to
Covid-19? Then the seller may have problems with the delivery of the agreed goods. When
the seller cannot deliver products, this naturally has consequences for your company. What
are the consequences and can you claim damages from the seller for the damage suffered?
Can the seller invoke force majeure?

The burden of proof with regard to force majeure rests with the seller. In other words, the
seller must prove that he is unable to fulfill the obligations arising from the contract due to
force majeure. First of all, you should check the contract or the general terms and conditions for provisions
regarding force majeure. If a clause is included, it must be determined whether or not there
is force majeure situation. After all, this provision can limit or exclude invoking force majeure.
The provision also usually states what the consequences are if one invokes force majeure.
If no provision is included in the contract, the law applicable to the contract has to be
examined.

Dutch Law

For information about force majeure and unforeseen circumstances under Dutch law, you
can consult this blog.

Vienna Sales Convention (CISG)

In practice, the application of the Vienna Sales Convention is excluded in the purchase
agreement or the general terms and conditions. A total exclusion of the Vienna Sales
Convention can only take place if the Convention has been explicitly included.
If the CISG is not excluded, article 79 CISG can be invoked for force majeure. That article
describes force majeure. However, force majeure is assumed in very exceptional cases under
the CISG. An appeal usually succeeds if the obligation that is not fulfilled is beyond the
control of the person invoking it. When restrictions are imposed by the government on
exporting products, it is not qualified as the fault of the seller. Nevertheless, the seller must
look for possible alternatives to fulfill the obligations. If the seller has made every effort to
provide the services or to deliver goods and fulfillment of the obligations still proves to be
impossible, the seller can invoke force majeure validly. In other words, if the buyer wants to
claim damages, the seller can defend himself by invoking force majeure.