The concept of «force majeure» under the laws of Ukraine, the United Kingdom and the United States

Abstract

The article analyzes the concept of force majeure provided for in Article 14-1 of the Law of Ukraine «On Chambers of Commerce and Industry in Ukraine» No. 671/97-ВР of December 2, 1997, which defines the list of circumstances falling under the concept of «force majeure». This list is quite broad, but not exhaustive. At the same time, such a list of force majeure circumstances did not exist before September 2, 2014, and this list appeared in connection with the anti-terrorist operation in eastern Ukraine after the entry into force of the Law of Ukraine «On Temporary Measures for the Period of Anti-Terrorist Operation» No. 1669-VII of September 2, 2014. It is emphasized that the Civil Code of Ukraine does not provide for the interpretation of such concepts as «force majeure» or «force majeure». The Commercial Code of Ukraine, in contrast to the Civil Code, states what are not extraordinary and unavoidable circumstances. Comparing the application of the concept of force majeure under Ukrainian law and UK law, it is worth noting that UK law does not provide for the concept of «force majeure» in legislation, as force majeure must be provided for in the contract. It is determined that the UK judiciary operates with the concept of «frustration», and the judiciary of the United States of America - with the concept of «commercial impracticability», which are inherently close to the doctrine of force majeure, although they contain some differences. Namely, the doctrine of force majeure refers to liability for non-performance or improper performance and is usually clearly defined in law, as is the doctrine of commercial impracticability in the United States of America. At the same time, the doctrine of «frustration» is not clearly provided for in English law. In addition, such doctrines also have different consequences: the doctrine of force majeure may be applied when it comes to exemption from liability for non-performance or improper performance of an obligation, while the doctrine of frustration and the doctrine of commercial impracticability are more likely to apply to the failure to perform an obligation in general, and even between these two doctrines there are certain differences, as noted by the court in The Aluminum Co. of America (ALCOA) v. Essex Group Inc. The doctrine of frustration may be applied when, if the parties had known about the change in circumstances and their impact on the relevant obligation, they would not have become a party to such an obligation. In turn, the doctrine of commercial impracticability relates more to the commercial component of the obligation and concerns unfavorable (in financial terms) consequences for one of the parties.