A Study on Force Majeure
Date Issued
2011
Date
2011
Author(s)
Sung, Hung-Ching
Abstract
This thesis is a comprehensive research on the legal concept “force majeure” in the field of civil law. In civil litigation cases, the defendants often protest that damages were caused by natural disaster or intervened by other human factors, which constitute force majeure defense. In Taiwan law, although the concept is common in litigation, and also widely used in a lot kinds of contract clauses, the legal research on it is quite rare, and the reasoning of decisions of the court are inconsistent.
Due to the deficiency of literature in Taiwan law, the paper starts from comparative law perspective in the second chapter. Although there are differences in different regulations, there are some common grounds. In the last section of this chapter, this paper returns to Taiwan law. The author thinks that it lacks clear definition to the word “force majeure” in our written law, therefore causes obscurity whether the law is applied, and it needs academic theories and court decisions to interpret. However, there are still differences when scholars try to define the definition of force majeure. The main question is, whether human factors also constitute force majeure event?
In the third chapter, this thesis focuses on the contract law. The author chooses decisions of Taiwanese Supreme Court as objects of observation. The result of research indicates that the constitutive requirements of force majeure in Taiwanese court decision are in some extent in accordance with those in comparative law. A dispute in effect of force majeure is, whether one can withdraw or terminate the contract when force majeure events happen? Another question is the risk-taking. For example, how do contract parties allocate the cost arising from extension of project time limit owing to force majeure? In general situation, it falls within the scope of private law autonomy and freedom of contract; however, the force majeure clauses in standardized contract should be under regulatory. In the last part of this chapter, the author analyzes other procedural matters when claiming force majeure, such as duty to inform and burden of proof.
The fourth chapter turns discussion to tort liability. First, through observation to Taiwanese Supreme Court decisions, the paper discovers that there are some similarities between contract liability and tort liability. In tort liability, if the written law does not stipulate, because the parties often do not have the possibility to agree upon a contrary intention in advance, the fault principle is applied. The author thinks, the function of force majeure concept is questionable under fault principle. Besides, in product liability, the paper states that if force majeure defense is established, it is equal to affirm the safety of product. When the concepts are over- lapping, because the scope of force majeure concept is narrower, it does not have to independently exist!
In the fifth chapter, this paper integrates the analysis in above chapters, and proposes the author’s own viewpoints toward the questions of force majeure concept in civil law. First are the scope and definition of force majeure. The paper argues that, instead of excluding human factors as force majeure events at the first beginning, it would be better to exquisitely analyze in individual situations, and clarify the responsibility more clearly.
In addition, the paper goes on to investigate the relationship between force majeure concept and preexisting constitutive requirements on civil liability. In general point of view, if the liability is raised to that only force majeure can be exemption, it is stricter than fault liability. Through the reasoning of this paper, the key point is not whether the obstacle is foreseeable, but whether it is preventable or be overcome! The contract liability and tort liability in Taiwan law, if not arrange by contract or regulated by written law, the fault principle is generally applied. Although the defendant uses force majeure as a defense, if the court reviews the case by force majeure-related pattern, it is apparently too strict, and will easily be confused!
In this way, it seems that the force majeure concept is meaningful only when the contract agreement or statue regulatory states that force majeure is the only way to exclude the liability. However, if we make a connection between force majeure and causation, are these two concepts overlapping, therefore make the force majeure concept cannot exist outside preexisting civil liability system? From the general method of causation examination, it seems that there is some obstacle. In particularly, when force majeure event causes no possibility of choosing to do or not to do, for example, the performance is delayed because of force majeure events, if the traditional “but-for” method is adopted, a conclusion that there is causation will be made, and it seems that force majeure and causation are not always overlapping. However, in spite of the limit of this “but-for” analyzing method, if we return to the purpose of examining causation, if there is not an opportunity to make a choice, how can we through the requirement of causation to release the message that people can make another choice to alter the result?
In conclusion, after analyzing force majeure concept in this thesis, the author holds that, whether force majeure is established, should be dealt form purely objective way. After eliminating subjective elements, the damage that is not preventable does not have causation with the accused behavior. Therefore, the so-called requirements of force majeure are only assisting method to examine causation, and it does not have independent function in legal analysis!
Subjects
force majeure
causation
fault
contract law
tort liability
natural disaster
human factor
Type
thesis
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