How to prove force majeure circumstances under the quarantine conditions related to COVID-19?

On March 17, 2020, the Law “On Amending Certain Legislative Acts of Ukraine aimed at preventing the onset and spread of coronavirus disease (COVID-19)” entered into force in Ukraine. According to paragraph 7 of this law, quarantine, which was introduced on the territory of Ukraine by Decree of the Cabinet of Ministers No. 211 of 03/11/2020, was classified as force majeure.

Force majeure circumstances, or circumstances of insuperable force, are extraordinary and inevitable circumstances that objectively make impossible fulfillment of obligations stipulated by the terms of the contract (contract, agreement, etc.). As a general rule, the occurrence of such circumstances relieves liability for breach of obligation (as a rule, in this case we are talking about the application of financial sanctions in the form of fines or penalties – the most effective mechanisms for inducing the proper and timely execution of a debt established by law (payment of taxes and etc.), or by agreement (delivery of goods, provision of services, etc.). At the same time, the exemption from liability remains valid only for the period during which this circumstance exists.

Since force majeure circumstances are always exceptional, they also provide for special rules of conduct, which is especially important for participants in contractual relations, since in practice it is very often in contracts that the order of relations between the parties during the period of force majeure circumstances is ignored or formulated vaguely and incomprehensibly.

It is for this very case that we remind you once again.

In accordance with Part 4 of Article 79 of the UN Convention on Contracts for the International Sale of Goods dated April 11, 1980 (entry into force for Ukraine: February 1, 1991) and part 2 of article 205, part 2 of article 218, part 4 of article 219 of the Commercial Code of Ukraine, unless otherwise provided in the contract, in the event of force majeure, a party that does not fulfill its obligation should notify the other party of the obstacle and its impact on its ability to perform properly. If this message is not received by the other party within a reasonable time after this obstacle became or should have become known to the non-performing party, this last party shall be liable for losses resulting from the fact that such notification was not received. Secondly, a party that does not fulfill its obligation, in the case of a reference to force majeure circumstances, must in any case certify precisely the effect of these force majeure circumstances on the proper fulfillment of its obligations.

The Chamber of Commerce and Industry of Ukraine and its authorized representatives regional chambers of commerce and industry certify force majeure circumstances (circumstances of insuperable force) and issue a certificate of such circumstances. The certificate is the proper proof required, as a rule, by the terms of the contract and by law to confirm the onset of such circumstances. The appeal to the CCI is carried out under each separate contract, individual tax and / or other obligations that fell due under the terms of the contract, legislative or other regulatory acts and whose performance has become impossible due to the presence of force majeure circumstances.

The application for certification of force majeure circumstances (circumstances of insuperable force) in the form established by the CCI of Ukraine can be downloaded at the following link: https://ucci.org.ua/zaiavi-pro-zasvidchiennia-fors-mazhorni….

The application is submitted signed by the head of the enterprise or organization and sealed, or by their attorney. An application of an individual is submitted with his signature in person or on his behalf by an authorized person.

It is important that for each application a separate package of documents is submitted, on the basis of which the CCI should make a decision on the existence of obstacles in the form of force majeure and issue an appropriate certificate, which the applicant may then present as proper evidence either to the counterparty under the relevant contract or in court, if it seeks judicial protection against unlawful liability under that contract.

Please, pay your attention to the fact that this publication does not constitute legal advice and is provided for information purposes only. If you have a specific question corresponding this publication issue, it is recommended to receive full consultation from our specialists.

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