CYIL vol. 15 (2024)

BÁRA MIKA 3.1 Czech law and vis major

Czech law contains a general excuse from liability for failure to perform a contract if the performance was prevented, made impossible, by an obstacle (in Czech překážka ). 39 In the words of the current Civil Code 2012, the obstacle is extraordinary, unforeseeable, insurmountable, and created independently of the will of the party who failed to perform the contract. 40 Inspired by Article 79 CISG, 41 the standard is high, strict, and considered subjectively. For example, court examination of the foreseeability requirement considers the (assumed) knowledge of the parties, 42 their diligent conduct, 43 and the exercise of professional expertise. 44 If the impossibility of performance due to an obstacle is successfully proven, the party who failed to perform is excused (liberated) from liability, either temporarily or permanently, depending on the nature of the obstacle. The term “obstacle” is commonly linked by Czech commentators 45 and lawmakers 46 to vis major . There is no specific definition of vis major used by Czech law, but the Czech Supreme Court ruled that it is a “ qualified coincidence ”, 47 for example, a natural force, 48 an occurrence which “ cannot be averted under the given conditions even with all efforts made by anyone due to its extraordinary nature and unpredictability ”. 49 In sum, Section 2913 of Civil Code 2012 (and its predecessors in Civil Code 1964 / Commercial Code) covers vis major situations, excusing the affected party from 39 Pre-recodification see Section 420 of Civil Code 1964 and Section 374 of the Commercial Code, after 2012 recodification, see Section 2913 of Civil Code 2012. 40 The full Section 2913 of Civil Code 2012 reads: “ (1) If a party breaches a contractual duty, such a party shall provide compensation for the resulting damage to the other party (…). (2) A tortfeasor is released from the duty to provide compensation if he proves that he was temporarily or permanently prevented from fulfilling his contractual duty due to an extraordinary, unforeseeable and insurmountable obstacle created independently of his will. However, an obstacle arising from the tortfeasor’s personal circumstances or arising when the tortfeasor was in default of performing his contractual duty, or an obstacle which the tortfeasor was contractually required to overcome shall not release him from the duty to provide compensation. ”. 41 BEZOUŠKA, P. § 2913 [Porušení smluvní povinnosti] [Breach of contractual obligation]. In: HULMÁK, M., et al. Občanský zákoník VI. Závazkové právo. Zvláštní část [Civil Code VI. Law of obligations. A special part] (§ 2055–3014). Praha: C. H. Beck, 2014, p. 1573. It should be also noted that the CISG inspired also Section 252 Czech Act no. 101/1963 Sb., the Code of International Trade, which was used until 1992. 42 For example, Czech Supreme Court ruled that for a seller active in agriculture business, even an extreme a crop failure is not unforeseeable, see Czech Supreme Court case no. 23 Cdo 3066/2010 dated 25.01.2012. 43 For example, the Czech Supreme Court refused an argument that it was unforeseeable that printing on a thermal paper would be destroyed after a certain period, arguing that record keeping on such medium was negligent. See Czech Supreme Court case no. 30 Cdo 1144/2014 dated 28.6.2016. 44 See case no. 29 Odo 690/2001 dated 8.9.2003 where the Czech Supreme Court considered a loss of licence of a Russia-based bank as a foreseeable risk for a Czech bank, acting as specialized professional. 45 TOMSA, Miloš. § 374 [Důvody vyloučení odpovědnosti]. [Reasons for exclusion responsibility] In: ŠTENGLOVÁ, I., PLÍVA, S., TOMSA, M. et al., Obchodní zákoník. 13. vydán í. [Commercial Code. 13th edition.] Praha: C. H. Beck, 2010, or PAŠEK, M. § 2913 [Porušení smluvní povinnosti]. [Infringement contractual obligations] In: PETROV, J., VÝTISK, M., BERAN, V. et al.. Občanský zákoník. 2 nd edn. [Civil Code. 2nd ed.] Praha: C. H. Beck, 2023, p. 1039. 46 http://obcanskyzakonik.justice.cz/images/pdf/Duvodova-zprava-NOZ-konsolidovana-verze.pdf p. 571. 47 The Czech Supreme Court case of 22 December 2010, no. 25 Cdo 3269/2008. See also ŠKÁROVÁ, M. § 420 [Škoda]. In: ŠVESTKA, J., SPÁČIL, J., ŠKÁROVÁ, M., HULMÁK, M. et al. Občanský zákoník I, II. 2nd edn. [ Civil Code I, II. 2nd ed.] Praha: C. H. Beck, 2009, p. 1208. 48 Czech Supreme Court case no. 23 Cdo 2321/2020 dated 30.9.2020. 49 Czech Supreme Court case no. 25 Cdo 2911/2006 dated 31.1.2007 or Czech Supreme Court case no. 30 Cdo 1144/2014 dated 286.2016.

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