Exemption from Liability for Failure to Perform Obligations Due to Force Majeure caused by Armed Aggression

Abstract

This article analyses the provisions regarding the performance of obligations and determines the role of force majeure in exempting a party to a contract from liability for failure to perform obligations. It has been established that domestic legislation adheres to the principle of mandatory performance of obligations, and that legal relations regulated by a contract are aimed at their termination in connection with the performance of obligations. It is emphasised that failure to perform obligations is a violation of the terms of the contract or the provisions of legislation, i.e. when one or both parties to the contract fail to perform their obligations in whole or in part. It is noted that failure to comply with certain terms of the contract is also considered a failure to perform obligations. The circumstances of force majeure as a basis for exemption from liability for failure to perform obligations are analysed. It is noted that force majeure is a circumstance that has occurred or may occur through no fault of a person and which cannot be prevented. Armed aggression and related actions, i.e. the threat of war, armed conflict or a serious threat of such a conflict, including (but not limited to) hostile attacks, blockades, military embargoes, general military mobilisation, declared and undeclared war, as a basis for exemption from liability, are not absolute, but are examined by the court in each specific case.

It is emphasised that the Supreme Court, as well as the courts of appeal and local courts, adhere to the position that the certificate of the Ukrainian Chamber of Commerce and Industry is not the main and mandatory evidence in a case concerning exemption from liability in the event of force majeure circumstances. It has been determined that in practice, in order to settle a dispute amicably or to defer the performance of an obligation, it is sufficient for the parties to send a letter to the Ukrainian Chamber of Commerce and Industry. It has been noted that the parties may apply to the Ukrainian Chamber of Commerce and Industry to refer each force majeure circumstance in each specific case to the court.

It has been concluded that the parties may apply to the Ukrainian Chamber of Commerce and Industry to obtain a force majeure certificate not only in relation to the non-performance of a specific obligation, but also in relation to a condition in the contract on which the parties agreed when concluding it.