Circumstances are unforeseen. Occurrence of unforeseen circumstances
When drafting a contract, a special place isthe concept of "force majeure", especially with regard to commercial transactions. A clear understanding of this term will help to avoid penalty payments and penalties in the event that unforeseen circumstances developed, and the obligations taken by the contractor were not met.
Acquaintance with the term
The very concept of "force majeure" comes fromFrench force majeure and translates as "an irresistible force." If we follow the legal description of the term, these events or circumstances are unforeseeable, irresistible, which do not depend on the will or influence of the parties to the treaty. They can not be foreseen, eliminated or prevented. When they come, one side that signs the contract brings the second loss. Due to unforeseen circumstances, the party that is responsible can partially or completely free from the fulfillment of the prescribed conditions.
Most often this term is more deeply describedin the documents themselves, refined and detailed, so that there will be as few gaps and questions as possible afterwards. For example, what could be the circumstances: war, fire, earthquakes, blockades, embargoes. The more detailed description of each item and the actions to which they lead, the more protected and confident each participant of the agreement will feel.
In the Russian legislation there is no concept"Force Majeure", but we can say that it is represented by another term - "circumstances of force majeure". In any case, these concepts are identical, and each of them carries a general meaning.
Although at the moment there are two groups of scientists,who hold fundamentally different positions. Some believe that the two terms have different characteristics, while others do not see this difference.
In the absence of a fixed legislative act, it is not necessary to talk about the difference of concepts. After all, even from the point of view of studying the origin of words "force majeure" is translated as an irresistible force.
This clause helps to avoid payments incase, when unforeseen circumstances developed, and you can not overcome them. Then you are removed from the responsibility to fulfill the terms of the agreement.
Of course, most often obligations arise in commercial relationships, more than ninety percent. But there are other options:
creation of literary works, inventions and any intellectual property;
causing material or moral harm;
legal facts that continue to apply to civil rights and obligations.
Force majeure in commercial relations
It must be understood that force majeure does not have any specific, pre-established characteristics. Therefore, the emergence of unforeseen circumstances will have to be proved.
That is, that side of commercial relations,which refers to force majeure, must prove that in this case it could not in any way affect the course of events. And that it is for this case that circumstances are insurmountable.
In legislative acts there is no clear definitionOf what is force majeure, there is only a general description of the term and norms that reveal the concept in different spheres: taxes, customs. Thus, many questions remain open.
Because of this, in commercial relations there can be additional difficulties if it is necessary to settle the situation related to force majeure.
The only way out is a more thorough descriptionconditions of occurrence of similar circumstances and variants of actions to which they can result. The legal basis for this is the fixed principle of freedom of contract formation.
Payment of taxes and force majeure
In the tax code this conceptis considered as a possible basis for exemption from liability for violation of tax laws. In addition, force majeure can be the reason for a complete tax exemption.
If unforeseen circumstances arise, fortheir confirmation must obtain a special certificate of the Chamber of Commerce. The director of the company or the head must sign the application and attach some documents:
Notarized copy of the contract. It is necessary that it already contains clauses on force majeure, specifying its types and consequences.
Copies of the detailed description of works.
Information on the amounts that are fulfilled under the contract at the moment of occurrence of unforeseen situations.
Documents confirming the onset of force majeure (from competent authorities, at least two).
Many companies cooperate with foreignproducers, suppliers and firms. But when drafting treaties, one should take into account the legislation of each country. For example, in Great Britain force majeure is present only as a contractual condition. It is necessary to strictly prescribe and stipulate each item to protect yourself from unforeseen events.
If such an item is missing from the documents,The doctrine of "futility", or frustration, comes into force. We will explain: if there are legal, material or physical circumstances unforeseen and insurmountable, which deprive the transaction of its original purpose.
An example of such cases may be loss of cargo (fire, theft), which occurred not through the fault of one of the parties.
It should be noted that this law is not alwaysbenefits. In case of recognition of the futility of the contract, it completely loses any legal force. Both parties are exempt from the conditions. And then no one can claim the payment of penalties and compensation.
Keep your hand on the pulse
It is impossible to avoid force majeure,then they are unforeseen. However, in order not to spoil your own image, you must always be ready for decisive action. The first, and one of the main rules that must be met in case of unforeseen circumstances, is always to be in touch.
Even if it turned out that for a while youyou can not fully contact the other party, at the first opportunity you need to report the incident. First, perhaps, not everything is lost and you will be allowed to back away from deadlines or some other conditions. Secondly, silence will only spoil the reputation. Being completely ignorant, the second side can imagine all the worst scenarios.
The modern world has given us great opportunities,including in the sphere of communications. A person who says that he could not call or write, or is too stupid, or incompetent, or simply finds excuses.
How can I contact the other party:
At the first stages of the transaction,take care of alternative ways of communication. Usually business people have a lot of options for communication: several phones, mail addresses, secretarial data. In this case, you should not exclude personal pages in social networks, in connection with unforeseen circumstances, even they can help you out.
Enough often force majeure affects precisely the periodfulfillment of commitments. In this regard, special attention should be paid to time management. There is an unspoken rule of performers - to increase the time. If you know that you will cope with the task for a week, increase this period by half, that is, specify one and a half weeks. Such a stock will allow you to secure yourself in case of force majeure.
Regular drawing up of work plans, control, step-by-step actions will help to avoid a lot of problems.
Advance planning of unforeseen circumstances that may arise will allow both sides of the transaction to secure themselves and save their finances.