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197022, Санкт-Петербург, Аптекарская набережная, дом 20, литера А, офис 801
197022, St. Petersburg, Aptekarskaya embankment, building 20, letter A, office 801
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A cure for the crisis
Comments for Delovoy Peterburg on the possibility of excluding the liability of companies for failure to fulfill contracts in connection with the introduction of
sanctions and anti-sanctions.
Olga Khodakevich, lawyer at LexCledere Consulting, believes that the imposition of sanctions has had a significant impact on the fulfillment of contracts directly or indirectly related to the supply of goods covered by the sanctions. Naturally, in case of impossibility to fulfill obligations, the question of consequences arises: is it possible to avoid liability due to the influence of force majeure circumstances? Even if the imposition of economic sanctions is not expressly stated in the contract as a force majeure circumstance, they may be assessed as such in accordance with the law: in this case, everything depends on the specific circumstances of the case.
According to the Civil Code of the Russian Federation, force majeure is recognized as circumstances that are extraordinary and unavoidable under the given conditions. Judicial practice and legal science distinguish the following signs of force majeure:
- insurmountability,
- impossibility to foresee,
- impossibility to control the occurrence of the circumstance.
Similar criteria are established in the norms of international law (for example, in the UN Convention on the Law of Contracts for the International Sale of Goods, 1980).
In each specific situation, these characteristics should be considered in the light of the actual circumstances surrounding the conclusion of the contract. One of the most important points to which attention should be paid is the moment of conclusion of the contract - did the parties know or could they have known about the possible imposition of sanctions at the time of conclusion of the contract? Publications in various mass media and published draft laws are of great evidentiary value in this regard, since, as part of a reasonable and good faith approach, participants in business turnover are obliged to foresee the possible impact of economic sanctions, even if the decision to impose sanctions has not yet been taken, but information about the relevant discussions has already been reported in the mass media.