A clause in a contract that removes liability for natural and unavoidable disasters is

known as force majeure. Human actions, such as armed conflict, are also included.
As awareness of pandemics, asteroids, supervolcanoes, cyber threats, and nuclear
war has grown, questions about what is and is not "foreseeable" in the legal sense
have arisen high. Law applies three tests to determine whether a force majeure
defense exists: the event must be unexpected, external, and irresistible.
A 'force majeure event,' according to Article 156.1 of the Civil Code 2015, is an
event that occurs objectively, cannot be predicted, and cannot be remedied even
after all necessary and possible measures have been taken. allowing for capacity
Although this provision is part of the statute of limitations regulations, it is still
widely used in civil and commercial legal relations.
According to the above definition, a force majeure event is one that meets all three
criteria: objective, unpredictable, and irreparable. However, because the Civil Code
2015 does not specify specific criteria for determining each factor, the
determination of whether an event has the converging elements of a force majeure
event is based on the opinion of the agency competent authority to settle disputes
(Court or Commercial Arbitration) when a dispute arises.
A force majeure event renders the affected party unable to perform its contractual
obligations. According to Article 351.2 of the 2015 Civil Code, "if the obligor fails
to properly perform the obligation due to a force majeure event, it is not liable for
civil liability, unless otherwise agreed upon or otherwise provided by law."

Một điều khoản trong hợp đồng xóa bỏ trách nhiệm đối với các thảm họa tự nhiên
và không thể tránh khỏi được gọi là điều kiện bất khả kháng. Các hành động của
con người, chẳng hạn như xung đột vũ trang, cũng được bao gồm.
Khi nhận thức về đại dịch, tiểu hành tinh, siêu núi lửa, các mối đe dọa mạng và
chiến tranh hạt nhân ngày càng tăng, các câu hỏi về những gì có và không thể
"lường trước được" theo nghĩa pháp lý đã nảy sinh cao. Luật áp dụng ba phép thử
để xác định xem có tồn tại biện pháp phòng vệ bất khả kháng hay không: sự kiện
đó phải là bất ngờ, xảy ra bên ngoài và không thể cưỡng lại được.
'Sự kiện bất khả kháng' theo Điều 156.1 Bộ luật Dân sự 2015 là sự kiện xảy ra một
cách khách quan, không thể lường trước được và không thể khắc phục được kể cả
khi đã áp dụng mọi biện pháp cần thiết và có thể thực hiện được. cho phép năng
lực Mặc dù quy định này là một phần của quy định về thời hiệu nhưng nó vẫn được
sử dụng rộng rãi trong các quan hệ pháp luật dân sự và thương mại.
Theo định nghĩa trên, sự kiện bất khả kháng là sự kiện có đủ ba tiêu chí: khách
quan, không thể lường trước được và không thể khắc phục được. Tuy nhiên, do
BLDS 2015 không quy định cụ thể tiêu chí xác định từng yếu tố nên việc xác định
sự kiện có hội tụ các yếu tố của sự kiện bất khả kháng hay không phải dựa trên ý
kiến của cơ quan có thẩm quyền giải quyết tranh chấp (Tòa án hoặc Trọng tài
thương mại) khi xảy ra tranh chấp.
Sự kiện bất khả kháng làm cho bên bị thiệt hại không thể thực hiện các nghĩa vụ
theo hợp đồng của mình. Theo quy định tại Điều 351.2 Bộ luật Dân sự 2015, “nếu
bên có nghĩa vụ không thực hiện đúng nghĩa vụ do sự kiện bất khả kháng thì không
phải chịu trách nhiệm dân sự, trừ trường hợp có thỏa thuận khác hoặc pháp luật có
quy định khác”.

1. What is Force Majeure?

Force majeure is a concept in contract law that describes a clause, included in

many contracts, that frees the parties to the contract from their contractual
obligations in the event of highly unusual and unforeseen circumstances.
Force majeure clauses in contracts commonly spell out the specific types of events
or circumstances that the contracted parties agree would constitute a force majeure.
The COVID-19 pandemic represents a classic example of a force majeure event.

• Clause 1, Article 156 of the 2015 Civil Code provides:

Force majeure events or objective obstacles make it impossible for the subject to
initiate a lawsuit or claim within the statute of limitations.

A force majeure event is an event that occurs objectively, which cannot be

foreseen and cannot be remedied even though all necessary and permissible
measures have been taken.

- To consider an event as a "force majeure" event, according to the 2015 Civil

Code, three conditions must be met:

First, this must be an “objectively occurring event”. This event can be a natural
event such as a natural disaster, but it can also be man-made such as the action of a
third person. Regarding"objectivity" , in practice, the boundary between
"objective" and "non-objective" is sometimes very thin.
Second, this must be an "unforeseen" event at the time of entering into the contract
but occurs after this point. The parties may not have foreseen an event occurring at
the time of the conclusion. In such a case, we do not apply the rule regarding force
majeure.
Third, the incident occurred "irreparable" even though all necessary measures have
been taken.

In general, the problem of force majeure is still very general, even difficult to
understand as well as not covering all cases in reality. This will lead to different
results of the Court's trial with the same legal variable, because if it is correctly
determined as a "force majeure event", the person causing the damage is not
responsible for compensation, except for otherwise agreed or otherwise provided
by law.

Thus, the person whose behavior is in the case of a "force majeure event", that act
is not at fault in one form or another, to one degree or another. According to the
provisions of the law, there is no civil liability.
• What is doctrine of force majeure?
Doctrine of force majeure is a clause that is included in contracts to remove
liability for natural and unavoidable catastrophes. It also encompasses human
actions, such as armed conflict.
Questions about what is and is not "foreseeable" in a legal sense have been raised
given the increased awareness of pandemics, asteroids, super-volcanoes, cyber
threats, and nuclear warfare.
Force majeure refers to a clause that is included in contracts to remove liability for
natural and unavoidable catastrophes that interrupt the expected course of events
and prevent participants from fulfilling obligations.
• The doctrine of force majeure as prescribed by Vietnamese law
According to the provisions of Vietnamese law, a force majeure event is an event
used to exempt a person from civil liability for a contract breach or an act of
causing damage to another person.

A force majeure event must be an objective event, outside the will of the violator,
that affects the violator's behavior. The inability to overcome this event is
inevitable not only for the violator but also for any other person who is also in
those conditions and circumstances. Besides the 2015 Civil Code, The definition of
force majeure events is also scattered in different legal documents. Some legal
documents provide examples of specific cases considered force majeure, including
natural events such as natural disasters, fires, explosions, floods, tsunamis,
epidemics or earthquakes. or man-made events such as riots, rebellions, hostilities,
protests, sabotage, embargoes, sieges, blockades and any act of war or public
hostilities. These regulations are basically consistent with the provisions of the
Civil Code 2015.
• Conditions for determining force majeure events
Pursuant to the provisions of Clause 1, Article 156 of the Civil Code 2015, an
event will be considered force majeure if:

- Happens objectively: The Civil Code 2015 does not stipulate criteria for
determining an event that is considered to have occurred objectively. However, it
can be reasonably inferred that an event occurs objectively when it occurs against
the will of the parties. In other words, the event is not created by the parties or
arises due to the subjective fault of the parties. It can be seen that, in order to
determine the objective factor, it is important to determine whether the violating
party has a subjective or intentional fault for the occurrence of a force majeure
event. In broader terms, if a force majeure event occurs due to the acts of a party in
the contract, it is difficult for that party to invoke the consequences arising from its
own actions to consider it as a force majeure event.

- Unpredictable:The Civil Code 2015 does not stipulate criteria for determining an
event that is considered to have occurred unforeseeable. To put it simply, an event
is an unforeseeable occurrence when it occurs beyond the expectations of the
parties. The issue is the reasonable time that the parties must anticipate that a force
majeure event may occur when the Civil Code 2015 has no provisions on this
issue. It can be seen that the commitments and obligations in the contract are made
by the parties based on the circumstances, conditions and objective factors at the
time of entering into the contract. Therefore, it can be reasonably deduced that a
force majeure event must be an event that the parties could not have foreseen at the
time of entering into the contract.
- It cannot be overcome despite all necessary measures and possibilities: In
addition to the conditions that require a force majeure event to be an objective and
unforeseeable event, at the same time, the Civil Code 2015 stipulates that a force
majeure event must be an irreparable event although the obligor has made every
effort to take all necessary and practicable measures to remedy the effect of the
event on the performance of the contract. This condition is also consistent with the
principle of good faith, honesty and towards ensuring the contract performance of
the parties. Accordingly, the obligor must take all possible measures to perform the
commitments and obligations recorded in the contract and cannot expect the
occurrence of an objective obstacle to serve as a basis for exemption. responsibility
for the performance of the contract.

In addition, based on the provisions on legal consequences in the event of a force

majeure event specified in Clause 2, Article 351 of the Civil Code 2015, the
consequences of the affected party's failure to properly perform its obligations as
prescribed. in the contract should also be taken into account in determining
whether an event is considered force majeure for a particular case.

2:
How does foreign law regulate force majeure?
Force Majeure. In no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss
or malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.

Content? Article how much? Which law?

Article 1218 of the French Civil Code states: “In contractual matters, there is force
majeure when an event beyond the control of the debtor, which could not
reasonably have been foreseen at the time of the conclusion of the contract and
which effects cannot be avoided by appropriate measures, prevents performance of
his obligation by the debtor.
If the impediment is temporary, the performance of the obligation is suspended
unless the resulting delay would justify termination of the contract. If the
impediment is permanent, the contract is automatically terminated, and the parties
are free from their obligations pursuant to the conditions laid down in articles
1351 and 1351-1.”

Expression/Example:
The following clause could be used:

“Neither party shall be liable as a result of any delay or failure to perform its
obligations under the contract if and to the extent that such delay or failure is
caused by a force majeure event. The parties expressly agree to exclude the
application of article 1218 of the Civil code and to […] shall constitute
force majeure events as per this contract. In particular, the parties agree that
epidemics and pandemics (especially the Covid-19 pandemic) shall constitute force
majeure events pursuant to this contract.

In case of force majeure, the parties shall act in good faith. In particular, the party
who is prevented from performing its obligation shall so inform the other party, in
writing, within [X] calendars days of the force majeure event. The party who
invokes the force majeure shall take all reasonable measures to limit the
adverse consequences of the force majeure event for the other party.

In case of temporary impediment, the performance of the obligations which is

impossible due to the force majeure event shall be suspended for the duration of
such force majeure event. If the force majeure event lasts more than [X] days,
either party may terminate the contract by providing a [30]-day prior written
notice to the other party.

In case of permanent impediment, the contract shall be automatically terminated

and the parties free from their obligations.”

Are there any alternative remedies that a party could consider based on being
unable to perform a contract due to the corona virus?

Hardship
If, due to the Coronavirus pandemic, the performance of a contract becomes
excessively onerous for a party who did not agree to bear the risks associated with
the pandemic, the affected party may request a renegotiation of the contract
(however, the party must continue to perform its obligations under the contract
during the renegotiation). Such renegotiation would be admissible if the
Coronavirus pandemic is considered to be a change of circumstances unforeseeable
at the time of execution of the contract (art. 1195 of the Civil Code).

Where the renegotiations fail or the unaffected party refuses the affected party’s
request for renegotiation, the parties may agree to terminate the contract or seek
judicial intervention. In the absence of an agreement within a reasonable
timeframe, a judge may, at the request of one party, amend or terminate the
contract at his/her discretion.

Parties are also free to regulate “imprévision” clauses and may exclude the
application of article 1195 of the Civil code.

Other contractual remedies

If a party is unable to perform its contractual obligations due to the COVID-19

epidemic, it could also try to invoke the principle of good faith or the “exception
d’inexécution” mechanism which allows a party to refuse or suspend the
performance of its obligations if the other party does not perform its own
obligations, or if it is obvious that it will not do so in due time, and such non-
performance is sufficiently serious (art. 1219 and 1220 of the Civil Code).
•
• Elements constituting force majeure events
• Pursuant to the provisions of Clause 1, Article 156 of the Civil Code 2015,
an event will be
considered force majeure if:
• - Happens objectively,
• - Unforeseeable
• - It cannot be overcome despite all necessary and permissible measures.
• Example 1: Dispute requesting exemption from compensation liability due
to breach of contract on time to provide travel services during the Covid-19
epidemic season.
• The contract was signed before the outbreak of the epidemic, but at the time
of tour departure, the tour company could not proceed due to the request of
the authorities to stop exploiting tourists and the country's entry restriction
order. X.
• This case is considered a 'force majeure event' because it is 'irreparable'.
• Example 2: Dispute asking for exemption from liability for compensation
for goods sale and purchase contract due to scarcity of input materials for
production, resulting in unsatisfactory quantity and delivery time.
 • Due to the epidemic, where input materials cannot be supplied to Company
A as planned, Company A must find alternative sources of raw materials to
ensure the correct performance of the contract (sales of goods) for Company
A. company B, even though the cost was higher than originally planned.
• This case is not considered a 'force majeure event' because it is 'fixable'.
• Is Covid-19 an 'Objective Obstacle' or a 'Fundamental Change of
Circumstance'?
• There is no clear basis to conclude that the Covid-19 epidemic is an
objective obstacle or fundamentally changes the situation. If the parties want
to apply the "objective obstacle" or"fundamental change" regime, they must
demonstrate that the specific elements of each institution are satisfied. It
should be noted that, if the 'fundamental change' regulation is to be applied,
the timing of a contract is a key factor. If the contract was signed after the
appearance of the Covid-19 epidemic, it would be difficult to explain that
the parties could not have foreseen the change in circumstances caused by
the Covid-19 epidemic.

Legal consequences of force majeure events

Article 351.2 of the Civil Code sets forth the consequences of a force majeure
event (unless otherwise agreed by the parties): “Where an obligor is not able to
perform an obligation due to an event of force majeure, it shall not have civil
liability, unless otherwise agreed or otherwise provided by law.” Similarly,
Article 294.1(c) of the Commercial Law permits the release of the obligor’s
liabilities in the event of force majeure.

3.Vietnam's law on force majeure

1. Content
According to the 2015 Civil Code, force majeure provisions in Clause 1, Article
156: The time does not include the statute of limitations for initiating a civil
lawsuit, the statute of limitations for requesting settlement. A civil matter is the
period of time when one of the following events occurs:
Force majeure events or objective obstacles make the subject have the right to
initiate a lawsuit, the right to claim cannot initiate a lawsuit, and the claim is within
the time limit brand.
A force majeure event is an event that occurs objectively, which cannot be
foreseen and cannot be remedied even though all necessary and permissible
measures have been taken.
From the concept of force majeure events, we can determine that an event is
considered a force majeure event when the following conditions are met:
Firstly, those are events that occur objectively or are called objective events, that
is, those events are beyond the control of the breaching party. For example: event
of storm, flood, earthquake, tsunami...
Secondly, the consequences of the event cannot be foreseen at the time of signing
or during the performance of the contract until before the time of occurrence
violation.
Third, the consequences of that event cannot be remedied despite all reasonable
and tolerable measures being taken.
Thus, only when all three of the above conditions are met, an event can be
considered as force majeure and serve as a basis for exempting the violating party
from liability.

According to Article 20 of the 2015 Penal Code (amended and supplemented in

2017) the provisions on unexpected events are as follows:
"A person who commits an act that causes harmful consequences to society in the
event that it is impossible to foresee or is not forced to foresee the consequences of
such act, shall not bear criminal responsibility."
About causing damage in the event of an unexpected event that has characteristics
very similar to a specific crime in objective terms such as having an act and
causing damage to the state, to individuals or to certain organizations. . There is
also a causal relationship between behavior and consequences.
The most important difference and also because of this feature that a person who
causes damage in the event of an unexpected event is not a crime and is not
criminally responsible, that person is the person who commits the act of causing
damage in the event of an unexpected event. no-error surprise means no intentional
loss, unintentional error because they have no way to choose how to deal with their
behavior.
Those who cause damage to others in the case of being determined as an
unexpected event will not be held criminally responsible according to the
provisions of the penal code.

So, an unexpected event is a person who performs an act that causes harmful
consequences to society due to an unexpected event, that is, in this case, it is not
possible to foresee or not be forced to foresee the consequences of that act.
criminal liability.
This is one of the grounds for excluding criminal responsibility, which means that
even though there is an act that is harmful to society and commits the crimes
prescribed by the Penal Code, it will not be considered a crime. (talk)
2. Example
According to the above content, natural disasters such as rain, flood, fire, storm,
tsunami, volcanic eruption, pandemic... are force majeure events. This is uniformly
applied in practice such as the Covid pandemic in 2020-2022 and will continue.
Notably, the parties can agree on other events: lack of fuel, power failure, network
failure... is a force majeure event to exempt liability when violating.

Dispute requesting exemption from compensation liability due to breach of

contract on time of providing travel services during the Covid-19 epidemic season.
The contract was signed before the outbreak of the epidemic, but at the time of tour
departure, the tour company could not proceed due to the request of the authorities
to stop exploiting tourists and the restriction on entry of country X.

This case is considered a 'force majeure event' because it is 'irreparable'.

The Covid-19 epidemic has caused damage to domestic and international
commercial business activities. The authorities restrict entry, travel restrictions;
suspend social activities, mass gatherings; temporarily suspending the exploitation
of economic benefits in some areas to control the epidemic and protect public
health is the cause of the stagnation and decline of commercial business activities.
3. Legal consequences of force majeure events

Except for liability for damages, the 2015 Civil Code does not specify what types
of responsibilities that the violating party does not have to bear. Meanwhile, the
Commercial Law 2005 provides broader provisions on this issue and exempts the
violating party from liability for most remedies, including compensation for
damage, fines for violations, suspension of implementation. contract, cancel the
contract and unilaterally terminate the contract (See also Articles 294, 296, 300 of
the 2005 Commercial Law)
Based on the provisions of contract law and market practices, in the event of a
breach of contract, the aggrieved party can apply a variety of remedies related to
financial liability and not related to financial responsibility.

Remedies related to financial liability include:

(i) compensation for damage

(ii) penalty for violation
(iii) late payment interest
(iv) prepayment
(v) require any undue payment to be due and paid
(vi) offsetting obligations
(vii) claim for other payments

Remedies that do not involve financial liability include:

(i) forced to continue performing the obligation
(ii) temporary suspension of contract performance

(iii) cancel the contract

(iv) unilaterally terminate the contract.

Because the 2015 Civil Code and the 2005 Commercial Law specifically list a
number of remedies that are exempt from being applied in the event of force
majeure events such as compensation for damage, fines for violations, suspension
of contract performance, etc. contract, cancel the contract and unilaterally
terminate the contract, there is a clear legal basis for waiving these remedies.
However, the exemption from the application of remedies not specifically listed in
the Civil Code 2015 and the Commercial Law 2005 is less clear. In our opinion, it
should be understood that if a force majeure event occurs, in theory, the parties to
the contract have the right to agree to waive liability with all remedies provided for
in the law on force majeure. contract. Therefore, if the parties want to be exempt
from liability for other remedies (besides the measures specifically listed in the
Civil Code 2015 and the Commercial Law 2005), the parties need to specify on
this matter in the contract.