In both Germany and Spain, the term "force majeure" is not precisely defined by law, but is largely determined by case law.
In the German Civil Code (BGB) alone, the term is mentioned in several standards in German law. For example, Section 206 of the BGB regulates the suspension of the limitation period as long as the creditor was prevented from pursuing legal action within the last six months of the limitation period due to force majeure. The term also plays a major role in German road traffic law in Section 7 II StVG. According to this, the liability of the vehicle owner for damage to property or personal injury caused during the operation of a motor vehicle is excluded if the accident was caused by force majeure. The Federal Court of Justice (BGH) defines the term "force majeure" as an unusual and unforeseeable event over which the party invoking force majeure has no influence and the consequences of which could not have been avoided despite exercising due care. The term can also be found in Section 2 HaftPflG and in German travel law. Here, too, the BGH refers back to the aforementioned definition. It is therefore primarily concerned with extraordinary events that are beyond the control of the affected party and make the fulfillment of a contract impossible or considerably more difficult. These can be natural disasters, wars or epidemics, for example. In contract drafting, the term is often used to limit liability for damages caused by such events.
In Spain, the term "force majeure" ("fuerza mayor" in Spanish) is also not explicitly defined in law, but it is mentioned in the Spanish Civil Code (Código Civil) and is also significantly influenced by case law here. The definition essentially corresponds to that of the BGH. "Force majeure" is also defined here as an unforeseeable, insurmountable and extraordinary event that prevents the fulfillment of an obligation without the affected party being responsible for it. These are often natural disasters such as earthquakes, floods or extreme weather events, as well as other unforeseeable events such as wars, riots or official measures that make it impossible to fulfill the contract. Although the concept of "fuerza mayor" is not expressly mentioned in Spanish civil law, it is enshrined in Article 1105 of the Código Civil. This states that, except in the cases expressly mentioned in the law, no one is liable for non-fulfilment of contractual obligations if this is caused by force majeure. The affected party is therefore exempt from liability as long as it can prove that the event was beyond its control and made it impossible to fulfill the contract or obligation.
In summary, the term "force majeure" is defined in both countries as an extraordinary, unforeseeable event that is beyond the control of the affected party. In both legal systems, liability for damages or non-fulfillment of contractual obligations is limited or excluded in such cases. However, the concept of "force majeure" is interpreted in Germany more than in Spain in the context of case law and contract drafting, whereas in Spain the concept is explicitly dealt with in the Código Civil.
When drafting contracts, it is therefore often useful to include contractual provisions that explicitly define which events are considered force majeure and what impact this has on the fulfillment of the contract. Such clauses are often used to provide clarity on how to deal with certain unforeseeable events.
Author:
Dr. Dominic John Patrick Porta, LL.M.
Attorney at Law (Düsseldorf Bar Association n° 52954)
Abogado (ICAIB n° 6645)
dominic.porta@anwaltmallorca.eu
www.anwaltmallorca.eu
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