On February 2, 2020, the Huzhou Council for the Promotion of International Trade in Zhejiang Province issued the country's first force majeure certificate of force majeure for the new coronavirus pneumonia epidemic at the application of an auto parts manufacturing enterprise in Huzhou. Under the influence of the nationwide "new crown" epidemic, a large number of obstacles to contract performance similar to those in Huzhou will inevitably emerge, and whether the force majeure provisions of Article 117 of the Contract Law of the People's Republic of China are automatically applicable in each case cannot be generalized. The purpose of this article is to discuss the specific application of force majeure provisions from the perspective of exploring the origin of the concept of force majeure and commenting on legal norms.

First, the concept of source exploration

The concept of force majeure derives from the general rules of Roman law and is formally codified in Articles 1147 and 1148 of the French Civil Code provides that where the debtor cannot prove that its default was due to external causes not attributable to it, it will be awarded damages for non-performance or delay in performance if necessary, even if there is no malicious intent. If the debtor is unable to perform its obligations for payment or act due to force majeure or unforeseen events, or defaults on matters prohibited by it, it shall not give rise to any liability for damages. From the perspective of legal sources, the concept of force majeure should cover the dual meanings of force majeure events and force majeure regimes. Force majeure events are defined from the scope of force majeure facts, and can generally be concretized into natural disasters, government actions and social behaviors. The force majeure regime further standardizes the concept and is generally used to clarify the logical framework for clarifying that the payment caused by the force majeure event cannot be paid and exempts the debtor from liability.

Specifically, in the context of unified objective responsibility, although force majeure events have long existed objectively, they have no legal significance. With the establishment of the legal concept that emphasizes subjective ethics and affirms the value of negligence, the party to the force majeure event begins to have legal significance and is gradually consciously standardized, and then forms a force majeure system in which the force majeure event causes the debtor to fail to perform and thus obtains exemption from liability. Therefore, the recognition of the value of negligence makes force majeure events germinate legal significance, and the occurrence of force majeure events at the legal level inevitably forms a logical chain with the inability to perform and exemption from liability. The concept of force majeure should be the meaning of force majeure event at its root, but its legal significance is linked to whether or not liability should be taken.

2. Normative evaluation

Based on the exploration of the concept of force majeure, force majeure events already exist as objective facts, and the key chain for their legalization and normative conceptualization lies in the determination of no fault, and further clarified and operable before the legislative process. In China's legislative body, the Law of the People's Republic of China on Foreign-related Economic Contracts promulgated in 1985 provides for force majeure for the first time, and paragraph 3 of article 24 of the law stipulates that force majeure is an event that the parties could not foresee at the time of the conclusion of the contract, and its occurrence and consequences could not be avoided and could not be overcome. The current concept of force majeure can refer to Article 117 of the Contract Law of the People's Republic of China, which follows the expression of the General Principles of the Civil Law of the Contract Law of the People's Republic of China, that is, force majeure refers to objective circumstances that cannot be foreseen, avoided or overcome. Although the provisions on force majeure in China's civil law system are derived from the provisions of Article 79 of the United Nations Convention on Contracts for the International Sale of Goods, the key difference from the provisions of the Convention is that for the balance of no fault, China's legislation clarifies that the "three noes" attribute is not an optional relationship, but requires that the three must coexist.

Specifically, force majeure, as an existing "objective situation", should be an event independent of human conduct. "Unforeseeable" emphasizes that the actor could not reasonably foresee the occurrence of the objective situation at the time of entering into the contract, and this provision emphasizes the definition of the subjective fault of the actor, of course, from the operational level, it is also appropriate to objectify the foresight standard in practice. In terms of "unavoidable" and "insurmountable", unavoidable means that for the occurrence of a force majeure event, although the perpetrator has taken reasonable care, he still cannot prevent the occurrence of the event; Insurmountable means that the parties have made their best efforts to overcome the event, and as a result, the contract cannot be performed. Although these two "cannots" constitute the elements of objectification, they are actually objective factors for judging the subjective fault of the actor, that is, the ability of the actor is insufficient to avoid and overcome the objective facts of the natural and social forces that affect the performance of the contract. It can be seen that China's existing normative system adopts a relatively strict combination of subjective and objective elements for the composition of force majeure.

In addition, according to the above analysis of China's relevant norms on force majeure, it can be seen that the application of existing norms as a cause of exemption from liability is only for the situation of inability to perform, and does not extend to the situation of delay, incomplete performance or defective performance of performance. However, as mentioned above, in view of the fact that the concept of force majeure and the basic structure of the regime in China are deeply influenced by the United Nations Convention on Contracts for the International Sale of Goods, article 79 of the Convention provides for exemption in a broad sense to apply to any breach of obligation and breach. Therefore, starting from the logical framework of legal norms and the interest measurement of legal value, in the case of delay in performance or incomplete performance, if a force majeure event occurs, on the premise of excluding the fault of the debtor, the provisions of Article 117 of China's Contract Law should also be applied by analogy to be exempted.

3. Applicable judgments

In view of the above interpretation of the concept and norms of force majeure, and referring to the provisions of the Notice of the Supreme People's Court on Lawfully Completing the Relevant Trial and Enforcement Work of the People's Courts during the Prevention and Control of Infectious Atypical Pneumonia on June 11, 2003 on the SARS epidemic, disputes arising from the impact of the SARS epidemic causing the parties to the contract to be unable to perform at all, in accordance with the The provisions of Articles 117 and 118 of the Contract Law of the People's Republic of China are properly handled. The author believes that whether force majeure provisions can be applied in this epidemic case, the following points should be paid attention to:

First of all, from the perspective of contract formation, in view of the unpredictable nature of force majeure, the time node of force majeure applied in individual cases should be strictly controlled after the conclusion of the contract and before the expiration of the performance period. For example, when the contract is concluded, the contractor is aware of the existence of the epidemic, and then claims force majeure and requests exemption, in principle, it cannot be supported. In addition, as mentioned above, the foresight provision is biased towards the characterization of the subjective aspect of the actor, and when applying epidemic cases, it is obvious that the foresight standard should be further objectified, and the foresight subject should be defined as the general public in society, and the standard is to be the general person in good faith, that is, unforeseeable means that the general person in good faith cannot foresee. At the same time, based on the duty of prudence and care that commercial entities should exercise in engaging in commercial activities, it is not appropriate to arbitrarily lower or raise the foresight standard due to the asymmetry of the professional knowledge of the contracting parties.

Secondly, due to the progressive nature of the development of the epidemic and in view of the insurmountable and unavoidable nature of force majeure, although the contract was concluded after the epidemic, it is not appropriate to completely exclude the application of force majeure. For example, if the outbreak of the epidemic is known at the time of the conclusion of the contract but there is no compulsory control, and then the epidemic spreads or the control is upgraded during the performance process, even if the actor has foreseen that the epidemic may have an impact on the performance of the contract, it is objectively difficult to avoid or overcome it on its own. At this time, although the "three noes" requirements of force majeure cannot be strictly met, it can also be based on the principle of fairness and claim that force majeure is constituted.

Third, in the process of contract performance, obstacles to performance due to force majeure can be divided into three situations based on the "three noes" requirement and the principle of application of analogy with respect to delayed performance and incomplete performance: First, the contract cannot be performed, that is, the debtor is in fact unable to perform the debt due to objective reasons, and the purpose of the contract cannot be achieved. Typical cases such as the inability to perform the travel contract due to the restriction of exit due to the impact of the epidemic, it is clear that the debtor can claim force majeure. The second is incomplete performance of the contract, that is, although the debtor has performed its obligations, its payment is incomplete in quantity or defective in quality. At this time, if it is true that the performance is incomplete due to the epidemic, force majeure can be considered, such as the inability to deliver the goods due to traffic control caused by the epidemic. However, if it is not related to the epidemic, force majeure factors should not be considered, such as the quality defect of the goods themselves. The third is the delay in the performance of the contract, at this time, the main consideration is whether the delay has a fundamental causal relationship with the epidemic. If the debtor can only delay performance due to government control, for example, because the enterprise cannot resume work on time, which makes it unable to deliver the ordered goods on time, it can be determined to constitute an obstacle to performance, and the force majeure provisions apply.

Finally, it remains to be established that force majeure is the sole cause of non-performance, and there are no other relevant factors. If the debtor fails to perform the circumstances such as breach of contractual obligations or its own fault, the debtor still needs to bear the corresponding liability for breach of contract. For example, if the goods deteriorate or damage due to existing packaging problems, it is obviously impossible to invoke the force majeure clause.

Fourth, realize the approach

After clarifying the idea of whether force majeure provisions can be applied on a case-by-case basis, as a transaction entity implementing contractual acts, it should take corresponding measures in a timely manner in accordance with the provisions of Articles 117 and 118 of the Contract Law of the People's Republic of China to fix the relevant evidence, so as to invoke the force majeure provisions without flaws and protect its legitimate rights and interests. The author hereby suggests the following:

1. Promptly notify the counterparty of the contract in writing (such as signed letters, emails, etc.) of the fact that the contract cannot be performed due to force majeure;

2. Actively take appropriate loss reduction to prevent loss expansion;

3. Organize and retain the relevant epidemic control notices, announcements and written certification materials of relevant personnel being diagnosed, isolated and observed;

4. Organize the timeline of the incident, mark the key matters, and attach corresponding supporting materials;

5. You can apply for a force majeure factual certificate from the local CCPIT and keep it.

In summary, in the context of the outbreak of the "new crown" epidemic, market trading entities should prudently advocate force majeure provisions on the basis of a comprehensive and thorough understanding of the concept, normative system and specific application of force majeure, and materialize existing rights through corresponding specific measures, so as to reduce their own losses and take the initiative in potential litigation risks.

(This article is translated by software translator for reference only.)