Delivery obligation despite force majeure?

When suppliers run into difficulties in fulfilling their contractual obligations, there is often talk of force majeure. Recently, force majeure has been discussed as a legal basis for exonerating the seller who has run into delivery difficulties, for example, in the context and as a consequence of the Russian attack on Ukraine; but it is also repeatedly referred to in connection with the coronavirus pandemic and the multi-causally caused delivery bottlenecks for many products in recent months. So is force majeure the legal institution of the day?

The concept of force majeure is not regulated in German sales law. However, supply contracts and general terms and conditions of sale often contain provisions on this subject. Within the framework of legal admissibility set by the law on general terms and conditions in particular, an answer to the question posed must therefore be sought primarily in such contractual provisions. The International Chamber of Commerce (ICC) has published 2020 model clauses, which can often be a suitable template for your own contracts (see our article: https://www.skwschwarz.de/details/neue-icc-musterklauseln-ueber-hoehere-gewalt-und-unvorhergesehene-leistungserschwernisse).

If the contract does not contain a specific provision in this respect, the question of whether the supplier can exonerate itself in the event of delivery difficulties caused by unforeseen circumstances does not depend under German law on whether the cause can be understood as force majeure. Rather, the decisive question is whether impossibility exists. If it is impossible for the supplier to fulfil the contract, he is released from his obligation to perform. However, it is not sufficient for this if a product is not available from the supplier's own planned source of supply. Unless a delivery from a specific production has been agreed, impossibility is only to be assumed if procurement from other sources of supply is also not possible. In principle, the supplier has a duty to procure, which may require him to use other sources. This applies within certain limits (see below) even if this entails a significantly higher purchase price for the supplier. He cannot pass on this economic disadvantage to the customer. If, on the other hand, no other purchase is possible, the supplier is released from his obligation to deliver due to impossibility (§ 275 BGB). Similarly, the customer is also released from his obligation to pay the purchase price (§ 326 BGB). If the buyer has paid the purchase price in advance, it must be refunded (§ 346 BGB). If there is impossibility, the supplier also does not have to pay damages if he can prove that he is not at fault for the impossibility or that he is responsible for it for other legal reasons.

Below the threshold of impossibility, the supplier may have a claim for adjustment of the contract due to disturbance of the basis of the contract (§ 313 BGB). This may be the case, for example, if the performance of the contract is not impossible, but the effort and costs have become so disproportionate that the supplier can no longer reasonably be expected to perform the contract with the original content. However, this is a high hurdle. In such a constellation, the buyer may, for example, participate in the increased costs if he insists on performance.

In the case of cross-border contracts, however, it is not self-evident that German law applies. What applies then?

First of all, it is crucial to determine which legal system is applicable. Usually, but by no means always, international supply contracts contain a corresponding provision. If the contract stipulates the application of German law, what we have explained in the above-mentioned article applies. But beware: the details of the wording matter. If, for example, a choice-of-law clause reads: "German law shall apply", German sales law as regulated in the German Civil Code (BGB) and the German Commercial Code (HGB) does not apply. Instead, the UN Convention on Contracts for the International Sale of Goods (CISG) applies, as it is part of German law. Sales law according to the BGB and HGB is therefore only relevant if reference is made to German law to the exclusion of the UN Sales Convention.

If the contract does not contain a provision on the applicable law, the law of the country in which the seller is domiciled will regularly be applicable (the situation may be different, for example, if court proceedings are held outside the EU). If this country is a contracting state to the CISG Convention, the UN Convention on Contracts for the International Sale of Goods will also apply. There are currently 94 signatory states (for a list see here: https://uncitral.un.org/en/texts/salegoods/conventions/sale_of_goods/cisg/status). Since, as shown above, Germany is a signatory state, the UN Convention on Contracts for the International Sale of Goods must be applied to export transactions in the absence of a choice-of-law provision. For import transactions, on the other hand, it depends on whether the country in which the seller is domiciled is a signatory state of the Convention.

If the UN Convention on Contracts for the International Sale of Goods is applicable pursuant to the foregoing, the following shall apply:

If the supplier cannot deliver, he is liable for damages regardless of fault (Art. 45, 74 ff. CISG). This warranty liability is stricter than that under German sales law, because liability for damages there requires fault (intent or negligence). The liability also covers the buyer's loss of profit (Art. 74 CISG).

However, the UN Convention on Contracts for the International Sale of Goods provides a restrictive corrective in Art. 79 CISG. According to this, the supplier is not liable if it proves that the disruption was outside its sphere of responsibility and was unforeseeable and unavoidable. This is intended to relieve the seller of liability for uncontrollable risks. Warlike events or epidemics that make the normal performance of the contract considerably more difficult can thus exonerate the trader. However, it depends on the individual case and the provability (which may succeed by a force majeure certificate). If, for example, the seller concluded the contract with the buyer at a time when the event causing the disruption was already becoming apparent in the region where his own supplier is located, he may not be able to invoke Art. 79 CISG and is therefore still liable for damages.