有趣的是，英国和其他普通法法域的法律通常没有“不可抗力”的法定定义。相反，“不可抗力”是当事人根据其自由意思而决定是否写入合同，因此需要遵守合同解释的原则。这些原则包括疑义利益解释原则（contra proferentem rule），也就是说应当狭义地解释排除一方当事人责任的条款。此外，如果一个条款约定模糊，则应当作出不利于希望援引该条款（有关免责条款的分析，请见《商法》第6辑第10期文章《免责条款》）的当事人的解释。此外，证明发生不可抗力事件的责任是在希望援引该条款的当事人的。
THECONCEPT of force majeure is familiar to commercial lawyers. Although it is often treated as a standard or “boilerplate” clause that appears in commercial contracts and does not require any attention or negotiation, it is important to be aware of how the concept operates and the different ways in which it is treated under the laws of different jurisdictions. This article examines the concept of force majeure and how it operates under the laws of common law jurisdictions and Chinese law.
THE CONCEPT OF FORCE MAJEURE
The term force majeure as used in English is actually a French term that means “superior force” or “superior strength”. It is not certain how the term came to be used in English, but it is likely that it was inserted in English commercial contracts by parties who were familiar with the term as it was used in the French Napoleonic Code. Accordingly, it is an interesting example of how a concept that was originally embodied in the laws of a civil law jurisdiction was adopted for use in contracts governed by English law.
As it is generally understood, the concept refers to an unforeseen event that is outside the control of the parties to a contract and prevents or delays the performance of obligations by one or more of the parties. A useful definition of force majeure – one that combines elements of the concept in both common law jurisdictions and civil law jurisdictions – appears in article 7.1.7 of the UNIDROIT Principles of International Commercial Contracts:
ARTICLE 7.1.7 (Force majeure)
1.Non-performance by a party is excused if that party proves that the non-performance was due to an impediment beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.
2.When the impediment is only temporary, the excuse shall have effect for such period as is reasonable having regard to the effect of the impediment on the performance of the contract.
3.The party who fails to perform must give notice to the other party of the impediment and its effect on its ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, it is liable for damages resulting from such non-receipt.
4.Nothing in this Article prevents a party from exercising a right to terminate the contract or to withhold performance or request interest on money due.
Two questions are of fundamental importance in understanding how the concept works: (1) what is the definition of force majeure; and (2) what are the legal consequences of force majeure? The discussion below examines these two questions from the perspective of the laws of common law jurisdictions and Chinese law.
It is interesting to note that in general the laws in England and other common law jurisdictions do not provide a statutory definition of the concept of force majeure. Instead, the concept is incorporated into contracts by the parties based on their own free will and is therefore subject to the principles of contractual interpretation. These principles include the rule known as the contra proferentem rule; namely, the rule that a clause excluding the liability of a party to the contract should be interpreted narrowly. Further, if the clause is ambiguous, it should be interpreted against the interests of the party who is seeking to rely on it (for a discussion about exclusion clauses, see China Business Law Journal volume 6 issue 10: Exclusion clause). In addition, the burden of proving that an event of force majeure has occurred is on the party that is seeking to rely on it.
Unlike common law jurisdictions, China has adopted the approach of civil law jurisdictions in terms of including the concept of force majeure in its written law. The main laws in which the concept appears are the Contract Law (articles 117 and 118) and the General Principles of Civil Law (articles 107, 139 and 153). The Contract Law provides as follows (see Citation 1).
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葛安德以前是年利达律师事务所上海代表处合伙人，现在墨尔本法学院教授法律，担任该法学院亚洲法研究中心的副主任。葛安德的新书《商法词汇：法律概念的翻译和诠释》重新汇编了其在本刊“商法词汇”专栏撰写的 所有文章。该书由Vantage Asia出版。如欲订购，请即登录 www.vantageasia.com
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.