CYIL vol. 15 (2024)

BÁRA MIKA In summary, the respondents experienced hardship mainly because of the steep increase in energy prices and supply prices caused by external factors which could not be considered as normal market fluctuation. The issues were solved by renegotiation which was common and generally successful. 4.5 Developments in contractual practice The preliminary interview with the Confederation suggested changes in attitude towards vis major and hardship clauses. In this respect, several trends were noted by the respondents. 74 Firstly, especially the suppliers, draft vis major clauses to refer to uncontrollable events but without the requirement that the obstacle must be also unforeseeable for the contract parties when concluding the contract. This shows an attempt to use the period with a larger number of unforeseen occurrences as a basis to undermine this requirement entirely. If successful, this removes one of the most restricting requirements from consideration. Secondly, several respondents encountered or used specific clauses stating whether Covid-19 (or another event) is or is not foreseeable or, more specifically, specify whether it can be the basis for a major or hardship situation. This is not advisable and leads to paradoxical situations. For example, R1 recalled: “ We had cases when the counterparty argued that an event which has anything to do with Covid-19 is not vis major and required explicit carve-out in the contract .” Thirdly, and this is also a negative trend, respondents noted negotiations for very extensive definitions for vis major or hardship, including common business issues such as breakdown of machinery, illness of employees, lack of materials, or lack of transport under the vis major clause. However, such an approach frustrates the position of vis major and hardship as exceptional – there is simply nothing extraordinary about the illness of employees and business parties should be expected to overcome it, precisely in line with the Czech Vis Major Rule or Czech Hardship Rule. R2 summarized: “ The vis major is being interpreted extensively. It is now not an act of God but a traffic jam on the highway. But that’s life .” R4 stated: “ All the things that we have seen during the last three, four years are now being pushed under the vis major umbrella .” The general conclusion of all respondents commenting on this point was that there is significant pressure to review and negotiate the vis major clause in detail. However, this detailed wording does not lead only to positive outcomes such as more clarity in occurrences covered by such clauses, but also to requests which are considered by the respondents to be both legally wrong and commercially unacceptable. In the absence of local case law on the topic (and the limited influence of the CISG which was not used by the respondents as governing law at all), it may take some time before the dust settles into a new workable standard. 5. Conclusion Both Czech law and the CISG underwent a similar evolution of adding hardship to the exemption doctrine applicable in cases of the impossibility of performance. In the case of the CISG, the development took longer and was based on the interpretation of Article 79 CISG, extending the term “impediment” to both vis major and hardship situations. The Czech courts, refused to support such an interpretation in several cases regarding sales contracts

74 In each case at least five respondents made a comment on the described trend.

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