Force Majeure Is Not Always a Reason

Article 1245 of the Civil Code cannot always be a reason for a party who is unable to fulfill their performance.

The party must be able to prove that there is indeed a situation that puts them in such a situation.

To see whether the fulfillment of performance cannot be carried out due to force majeure, the parties must refer to the agreement. Generally, the agreement will regulate the form of circumstances that meet the criteria.

The criteria for force majeure can also refer to the indicators regulated in Article 1245 of the Civil Code. Here, there are several conditions that can be used as a reference.

First, the situation is a situation that is unforeseen. This means that the party who is unable to fulfill the performance cannot predict that the situation will arise.

Second, the situation is a situation that does not arise based on bad faith from the party who is unable to fulfill the performance.

Third, the situation is a situation that unavoidable. The party unable to perform the achievement has no power or ability to avoid the situation.

It is not enough to only understand the indicators of the situation, the party unable to perform the achievement also needs to provide a subjective defense related to the above indicators.

Let's say, in the second form, they prove that they really have no bad intentions, either explicitly or secretly, not to carry out the achievement.

Take for example the cancellation of the logistics delivery agreement due to the landslide mentioned at the beginning of this article. The absence of bad faith can be proven if the party making the delivery knows the terrain of the journey. He knows that 1 hour before the delivery will be made, there will be no rain or any circumstances that trigger a landslide.

Another form of subjective defense is proving the absence of alternatives. Here, the party unable to perform the achievement must provide a legitimate claim that they have no other way to perform the achievement.

Still in the previous example of logistics delivery, the party unable to make the delivery can state that the logistics being delivered can only be done with a medium that is affected by the landslide. They cannot use other transportation and/or other travel routes because it is not in accordance with the agreement.

With the fulfillment of the various prerequisites above, a force majeure can be considered logical as a reason for canceling the agreement.

Furthermore, the cancellation of the agreement must also consider the risks.

In this case, the risk arises because the cancellation of the agreement is caused by force majeure. The risk is borne by the parties in the agreement.

Generally, risk calculations can be relative to the agreement clause regarding the form of the situation.

If what happens is absolute force majeure, the risk is borne by the party who is unable to perform the achievement by providing appropriate compensation. We can find this in the provisions of Articles 1545 and 1553 of the Civil Code.

It could also be that the risk is borne by the party holding the achievement that should have been carried out by the other party. We can find this in the provisions of Articles 1237 and 1444 of the Civil Code.

However, if what happens is relative force majeure, the risk may not automatically arise. Here, the agreement does not automatically become null and void because the parties can arrange a new agreement regarding efforts to continue implementing the agreement.