Force Majeure and loss of the basis for business in Romania

When does the obligation to perform the contract cease to apply?

The obligation to perform the contract would lapse in the event of force majeure. For a contracting party to be able to invoke force majeure in order to be relieved of contractual liability, the external event due to which it could no longer perform its obligations must not have been foreseeable or avoidable by any other person in a similar situation.

It is therefore necessary, on the one hand, that the existing event is outside of the conduct of the parties, unforeseeable and unavoidable and, on the other hand, that the person relying on it takes all measures to avoid or limit its effects. The aggravation of contractual conditions or fulfilment of the contract, for example due to long waiting times or disproportionate increases in price, do not, according to general opinion, constitute a case of force majeure and do not release from the obligation to fulfil the contract.

When may a withdrawal or an adjustment of the contractual relationship be considered?

In principle, there is no legal right of withdrawal in this context under Romanian law. However, there is the so-called legal aspect that something is unforeseeable (rebus sic stantibus). In Romania, this means that if performance of the contract is delayed due to an extraordinary change in circumstances which occurred after the conclusion of the contract and which could not have been foreseen and which would make it manifestly inequitable to oblige the debtor to perform, the court may, on the basis of a request to that effect by the party concerned, either order adjustment of the contract in order to fairly distribute the losses and benefits resulting from the change in circumstances between the parties or decide to terminate or cancel the contract. If the parties cannot reach an out-of-court agreement, appropriate court proceedings must therefore be conducted.

How can future contractual relationships be optimally structured?

It is advisable to include clauses in future contracts which, taking into account the contractually owed services, provide for the possibility of withdrawal in the event of the occurrence of certain circumstances, which must precisely defined in the individual case (contractual right of withdrawal). Corresponding rights of withdrawal can be agreed between the parties on the basis of private autonomy and thereby the obligation to provide contractually owed services under more difficult conditions that did not exist at the time the contract was concluded could be dropped.