Force Majeure Exemption System For A Comparative Study

This article starts from the introduction of Force Majeure and its correspondingrules in different countries, and analyses the standard of the essences of ForceMajeure, its legal consequences and the effects of Force Majeure clause. Finally, someadvices are put forward on the improvement of the rules of Force Majeure.The standard of unforeseeability, which is one of the essences of Force Majeure,should be a combination of an objective one and a subjective one, i.e. whether anordinary prudent man could have foreseen the occurrence of the event and whetherthe particular party had the ability to foresee. In terms of the degree of foreseeing, aslong as the party has no reason to have foreseen that the occurrence of the eventwould have adverse effects on the performance of contract, there is room to apply therule of Force Majeure, no matter that party has foreseen the occurrence of the event ornot. Ordinarily, the rise in the cost of performance may not be viewed as exceedingthe control of the party invoking Force Majeure. However, if the cost of performanceis caused extremely expensive comparing with the cost in ordinary circumstances byan external event, the event may be regarded as exceeding the control of the invokingparty.Different countries vary in the disposal of the contract after a party is exempted.According to the effects of the event on the performance of contract, the solution maybe alteration of contract, annulment of contract or pro-rata performance. Alteration ofcontract and pro-rata performance is effective to prevent arbitrary avoidance ofcontractual obligation and to prevent unjust result.The effect of Force Majeure clause is usually admitted in international commercialtransactions, but whether the clause would act as the parties agreed at the time ofcontracting is not always settled. Therefore, in drafting Force Majeure clause,attentions should be paid to some items. The Law of Contract in China should reduce the standard of the essences of ForceMajeure, furnish the parties with the rights of making a Force Majeure clause, and addthe alteration of contract and pro-rate performance as optional remedies.