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Events on the Independence square as force majeure

  • Author: Andriy Buzynnyi
  • Practice areas: Contract law
  • Standardized procedures: Legal advice
  • Date of publication: 28/02/14

The laws of Ukraine don’t define the term “force majeure circumstances”.  It is regulated by a plenty of the laws which have different meanings for it. At the same time force majeure includes different social and natural circumstances. Considering this, there are different legal consequences for force majeure.

In particular, the Civil Code of Ukraine doesn’t define the term “force majeure circumstances”. Irresistible force is defined as extraordinary or inevitable event which happens under certain conditions according to the Article 263 of the Civil Code of Ukraine. Except it, the Article 617 of the Code regulates that irresistible force can be reason for releasing a person from liability for breach of obligation. Considering the practice of courts, the term “force majeure” defines through the Article 617.

The Commercial Code of Ukraine also doesn’t regulate this term. But the Article 218 defines the term “irresistible force”. It means that there is no clear definition for this term in the laws of Ukraine.

Do events “at the Maidan” and “in the Grushevskogo street” relate to “force majeure”?

These events can be considred as force majeure if Ukrainian Chamber of Commerce and Industry decides so. Current laws don’t regulate which state bodies have a right to fix rallies, demonstrations or riots as a force majeure. That’s why we have to take into account the general principals of proving. The matter of it is that every circumstance must be proved with evidences. So abovementioned circumstances can be proved with different evidences which confirm existence of them. In a case of a riot it can be a certificates of the Internal Affairs bodies, video, recordings of TV shows etc.

So considering events “at the Maidan” and “in the Grushevskogo street”, they can be related to force majeure. These events can make fulfillment of the obligation impossible. Also considering the Article 219 of the Commercial Code of Ukraine these events can be related to force majeure in a case of defining them like that in the agreement.

Which state bodies issue a certificate about force majeure and the procedure of getting it.

The current laws of Ukraine define the full list of the state bodies which authorize to confirm these facts according to the Supreme Economic Court’s decision dated the 24th of May 2011 in a case no. 11/85. The conclusion of other state bodies is not legal and can’t be used as a confirmation of force majeure.

According to the Article 6 of the Law of Ukraine “On the procedure of settlements in a foreign currence” a certificate of Ukrainian Chamber of Commerce and Industry or other authorized state body (organization) is a confirmation of force majeure.

According to the Article 5 of the Law of Ukraine “On Ukrainian Chambers of Commerce and Industry” Chambers of Commerce and Industry are established and function on the territory of the Crimes, regions, Kyiv and Sebastopol (regional Chambers of Commerce and Industry). There must be only one chamber in a region.

According to the Article 3 of the abovementioned chamber can do other tasks according to its charter.

Considering this article, Chamber of Commerce and Industry can confirm force majeure in relations between citizens of Ukraine in a case if a charter regulates it. At the same time you have to take into account that not all chambers have this clause in their charters.

Parts have a right to define organization which must issue these certificates in their commercial agreements.

The applicant must submit documents which confirm the fact of event and period of its action when he calls on Ukrainian Chamber of Commerce and Industry for getting a certificate.

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