Law and regulation of force majeure in Romania

Yes. Force majeure is expressly defined in Article 1351 of the Romanian Civil Code.

Article 1351 of the Romanian Civil Code entitled “Force majeure and fortuitous events” states that: “force majeure is an external, unforeseeable, absolutely invincible and unavoidable event”.

Pursuant to Article 1351(1) of the Romanian Civil Code “unless the law otherwise provides, or the parties do not otherwise agree, liability is removed when the prejudice is caused by force majeure or a fortuitous event”.

Romanian law allows the parties to regulate by way of agreement, what they consider to be force majeure events. This includes preventing a party from being able to perform its obligations, or even excluding the applicability of such exemption. Further, the parties may agree on the procedure to be used for invoking force majeure (e.g. provision of force majeure certificates), and what options the parties have (e.g. unilateral termination) if the force majeure event continues for a given period. 

Where the parties fail to include a force majeure clause in their contract, the default provisions in Romanian law on force majeure will apply.

There is no limit imposed on the parties when regulating a force majeure clause. However, there is a general principle of “good faith” negotiations under Romanian law that should apply. 

Standard contracts which exclude force majeure relief, or limit its effects under the law, (e.g. Terms of Business/ standard Terms and Conditions) and are not subject to negotiation with the other party, must be expressly acknowledged and consented to by the other party (who is otherwise deprived of the – full – benefit of force majeure under the law). These are called “unusual clauses” (similar to “vexatious clauses” in other jurisdictions) and need to be expressly consented to in order to be valid and effective. 

Where “force majeure” is not specifically defined in the contract, the general definition of force majeure in Article 1351 of the Romanian Civil Code will apply. 

Note that the four conditions of force majeure (external, unforeseeable, absolutely invincible and unavoidable) need to be met cumulatively. With respect to the “absolutely invincible” (or unsurmountable) condition, it will not be sufficient if (due to an external/unforeseeable/unavoidable event) a party’s obligations are rendered more difficult to perform/more cumbersome or financially more burdensome. The condition requires that a party be absolutely and objectively prevented from performing its obligations – the “absolute” or objective standard means that the event must be “absolutely invincible” for any prudent and diligent person under similar conditions (i.e. a bonus pater familias standard). 

To the extent that such conditions are met, the party terminating the contract for ‘force majeure’ would need to seek termination in a court of law. To allow for termination without further formalities or an intervention of a court of law, the termination clause would need to be much more explicit. 

Not in principle.

However, Article 78 – 79 of the Romanian Consumer Code, provides that a clause which has not been negotiated with the consumer will be considered an abusive clause and thus be invalidated by a court if it is contrary to the principle of good faith and substantially tips the balance of contractual rights and obligations to the detriment of the consumer. 

Potentially yes. If the T&Cs are not negotiated between the parties (e.g. they are “adhesion contracts” or “take-it-or-leave-it” type of contracts), then clauses which limit or exclude the benefit of force majeure will not be effective or valid against the party who has been deprived of such benefit, unless such other party has formally and expressly consented to such clause. 

Yes, please see below:

“Neither Party shall bear liability for full or partial non-performance of any of the terms hereof if such non-performance and/or improper performance is a result of circumstances of force majeure, namely external, unforeseeable, absolutely invincible and inevitable circumstances that objectively prevent the fulfilment of obligations provided for by the terms and conditions of the agreement and obligations under legislative and other regulatory instruments, such as: threat of war, armed hostility or its serious threat, including but not limited to enemy’s attacks, blockades, military embargo, actions of a foreign enemy, general military mobilization, military actions, declared and undeclared war, actions of a public enemy, commotions, acts of terrorism, diversions, piracy, disorders, invasion, blockade, revolution, coup, insurrection, mass unrest, introduction of curfew, expropriation, enforced withdrawal, take-over of enterprises, requisition, civil demonstration, blockade, strike, accident, unlawful actions of third persons, fire, explosion, long interruptions in transport operation governed by the conditions of relevant decisions and acts of state authorities, closure of sea straits, embargo, prohibition (restriction) of export/import etc., as well as those caused by weather conditions and natural calamity, namely: epidemic, severe storm, cyclone, hurricane, tornado, whirlwind, flood, snowdrifts, bare ice, hale, ground frost, freezing of sea, straits, ports, mountain passes, earthquake, lighting, fire, drought, soil subsidence, landslide, other natural disasters, etc.

Within [●] days, the Parties must notify each other of the occurrence of the force majeure circumstances, which shall further be certified by a document issued by the competent authority. The force majeure circumstances shall be confirmed by a document issued by the Romanian Chamber of Commerce and Industry or a regional chamber of commerce and industry in accordance with Romanian legislation. Where a relevant Party fails to give or delays notice of the force majeure circumstances, it shall have no right to refer to those force majeure circumstances.

If the force majeure circumstances continue for more than [●] days, either Party may terminate this Agreement unilaterally by a written notice to the other Party. In this event neither Party shall be entitled to the reimbursement of its costs in connection with the early termination of this Agreement. The Agreement shall be deemed terminated on the date that notice is received.” 

No.

A party affected by Coronavirus may potentially invoke the “theory of frustration”. Under Article 1271 of the Romanian Civil Code, such party may invoke the “substantial change in circumstances” defense in relation to contractual agreements entered into before the beginning of the outbreak.

In this case, a court may amend, i.e. “adapt”, or order the termination of an agreement due to substantially changed circumstances, at the request of the interested party, if the latter succeeds in proving that all of the following four cumulative requirements are met: 

1. the change in circumstance occurred only after the conclusion of the contract;
2. the change in circumstance (and the extent of the same) could not have reasonably been foreseen by the debtor at the time the agreement was entered into;
3. the debtor did not and cannot reasonably be expected to have assumed responsibility for such risk; and
4. the debtor tried in good faith and in due time to negotiate the “adaption” of the contract in a fair and reasonable manner.

Under Law number 335/2007, the Romanian Chamber of Commerce and Industry is the only body empowered to certify circumstances of force majeure under Romanian law. The certificate is issued only on request, following a case-by-case analysis and for a fee of EUR 500 plus VAT.

Note however that, following the Presidential Decree of 16 March 2020 which instituted the state of emergency in Romania, the Ministry of Internal Affairs has also been given competence to issue force majeure certificates.