Force majeure abused as a debt shield
A distributor owes 4 billion for goods, 6 months overdue. When pressed, it writes: “due to economic recession and market volatility — force majeure — we are discharged from payment.” Familiar? This is the most common force majeure invocation — and the easiest to defeat.
Article 156, 2015 Civil Code defines force majeure with three concurrent conditions: (1) occurring objectively; (2) unforeseeable; (3) insurmountable despite all necessary and possible measures. Missing any one — not force majeure.
Rebuttal: four arguments
1. Economic hardship isn’t force majeure: recessions, inflation, FX swings and soft markets are ordinary business risks — foreseeable to every contracting business. Case law is consistent: financial difficulty doesn’t discharge payment duties.
2. Direct causation required: even with objective events (e.g., floods), invokers must prove the event directly made payment impossible — not merely “harder.” A flooded warehouse differs from “flood-dampened sales.”
3. Mitigation and notice duties: affected parties must promptly notify counterparts and take all remedial measures. Six silent months then crying force majeure when sued — courts reject it.
4. Discharge only within affected scope: even recognized, force majeure discharges only unperformable portions — not whole debts. Duties revive when events end.
When force majeure genuinely applies
Natural disasters directly destroying business premises (flooded warehouses, lightning fires); wars and riots blockading areas; administrative orders banning operations (official pandemic lockdowns) — plus proof of all three conditions, direct causation and timely notice. COVID-19 taught the big lesson: courts granted relief only with direct administrative lockdown orders, never on generic “pandemic impact” claims.
Frequently asked questions
Distributor invokes COVID for 2023 debts?
Very weak — COVID counts only during direct administrative restriction periods, with proven causation. Debts arising in 2023 (post-normalization) can’t ride on COVID.
Contracts with bespoke force majeure clauses?
Contract clauses apply first — many list qualifying events specifically (natural disasters, wars, declared pandemics…). But clauses can’t arbitrarily “lower the bar” below Article 156 in disputes.
Grant forbearance for genuine hardship?
Consider commercially (keeping the channel), but in writing: time-bound extension annexes with interest and security — expressly agreements, not force majeure admissions. Never let indulgence become legal precedent.
Still not paying after force majeure fails?
Back to standard collection (see EXP-6313): penalties, late interest, suit, interim emergency measures, enforcement. A defeated force majeure defense leaves no shield.
Preventing this contractually?
Detailed force majeure clauses: listed events, notice procedures (deadlines, forms), mitigation duties, and discharge scope (suspension, not debt erasure). More detailed contracts leave less room for creative invocation.
This article has been quality-reviewed by the FLAW AI Legal Council