Written by: René Jakl
Photo by: Ivan Malý
Force majeure. An irresistible force.” With this nearly mystical characterization the Black’s Legal Dictionary begins to interpret the term vis maior. The reality of legal relationships is more pragmatic. In most cases, what matters is whether a committed entity, is or is not responsible for failure to fulfill its obligations due to circumstances beyond its control.
Czech law governs this issue in the Commercial Code for use in business relationships, particularly in the section that deals with compensation for damages caused by breaches of contractual commitments, specifically in Article 374 and those that follow. For example, if a shipment cannot be delivered because of a landslide, the transport firm in question is not responsible for potential damages suffered by the customer due to delivery failure.
Besides natural disasters, war, and public disorder, legal matters such as official prohibition or a new law may apply. However, in all cases it is true that the committed entity was unable to foresee or avert this circumstance or surmount it once it had occurred. All these circumstances must apply at the same time. This means that even though it was impossible to foresee the road being out, the transporter would not be relieved of responsibility if it were possible to simply resolve the problem, by putting the load on a train, for example. Also, the committed entity cannot claim vis maior in the event that such circumstances occur when the committed entity was already late in his fulfillment. Nor can the committed entity claim as vis maior facts following from his own economic situation, such as not having enough money to buy gasoline.
The Commercial Code contains special provisions for international trade contacts. In these sections a committed entity that has failed to get official authorization cannot claim that circumstance as vis maior. It is possible to deviate in a contract from these principles governing vis maior. The most frequent method is by means of arrangements covering contractual penalties. If a contracting party undertakes to pay a contractual penalty in the event that it fails to fulfill its obligations, it must pay such penalty unconditionally, without looking into whether the breach of obligation was due to that party’s own actions or due to circumstances beyond his or her control.