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Coronavirus - a case of force majeure under German law?

Germany: Can contractual partners invoke the Coronavirus as a case of force majeure under German law? The coronavirus - COVID 19 - is spreading nationally and internationally. Customers or suppliers are increasingly invoking force majeure as a reason for delayed calls or deliveries and are of the opinion that they are released from their obligations due to the effects of the coronavirus.

In principle, diseases and epidemics can constitute a case of "force majeur". In general, "force majeur" is defined as an external event that has no operational connection and cannot be averted even by the utmost care that can reasonably be expected. As a consequence, the affected party is temporarily or even permanently released from its contractual obligation without the other party being able to claim damages.

There are strong indications that, at least in some areas, the effects of the coronavirus can be regarded as force majeure. This concerns, for example, areas where specific governmental measures such as curfews, traffic restrictions or other quarantine measures have been imposed.

However, it is important to note that invoking force majeure does not necessarily entail legal consequences. For example, German law does not actually recognise "force majeur" as a general principle. Only in a few special cases are there legal regulations in this respect.

Other legal systems, on the other hand, do contain explicit provisions on this, such as the International Sales Convention (Art. 79 CISG) or some national laws. Chinese law also knows the principle of "force majeure". In addition, contractual clauses on "force majeur" are part of the usual contents of international commercial contracts.

In this respect, however, the consequences of invoking force majeure also depend on the respective specific contractual or legal provisions. As a rule, the following consequences are common:
  • temporary exemption from contractual obligations (e.g. delivery or acceptance)
  • permanent relief
  • possibility to terminate the contract (usually after a certain period of time). 
As a result, the question of whether a contractual partner is justifiably invoking a case of force majeure can therefore only be clarified in individual cases. In practice, we therefore recommend that such arguments be critically examined and the exact circumstances of the case as well as the concrete contractual or legal consequences be examined.