Can Drought be considered a Case of Force Majeure That Can Due to Exemption from Liability for the Debtor?

Abstract

Provided that the prejudice is determined by a case of force majeure, the liability of debtor arising from the unfulfilled obligations is exempted. Force majeure has always an external nature and is defined as an unpredictable, unavoidable and unsurpassable event. The judicial practice indicates as force majeure events natural calamities or other catastrophes. Such events, however, cannot be considered as absolute events of force majeure and they should be analyzed in each individual case, evaluating if they meet or not the requirements of such event that can exonerate the debtor from the liability. The signatory parties of the contract can decide under a deed that certain events will be considered cases of force majeure. Proving an event of force majeure does not result into the exemption of liability if the debtor was put in delay as regards the fulfillment of the obligations undertaken by the contract and if the debtor has undertaken the liability as per a contractual convention or clause. In our opinion, the contracting parties should protect themselves by stipulating in their contract provisions regarding the details concerning the events of force majeure, but as well on the measures to be taken by the parties under such circumstances (immediate notifications, emergency measures implemented to mitigate the effects of the force majeure and losses, documents from the relevant authorities).